It’s gratifying when the BBA has an opportunity to throw our support behind issues related to civil rights and civil liberties, both fundamental to our mission as a community of lawyers. This week the BBA joins as amici in two cases currently before the United States Supreme Court — Dennis Hollingsworth, et al. v. Kristin M. Perry and United States v. Windsor. Simply put, the Perry and Windsor briefs argue that sexual orientation classifications warrant heightened scrutiny under the Equal Protection Clause.
Heightened scrutiny is essential when the affected minority lacks the political power to defend itself from the majority’s prejudices through the normal democratic process. As the amicus brief in Perry notes, heightened scrutiny is “warranted to ensure that historical prejudice and antipathy are not masked by after –the- fact rationalizations.”
Perry challenges California’s Proposition 8, a gay marriage ban approved by a 2008 ballot initiative. From June 2008 until November 2008 when Proposition 8 passed, same-sex couples were allowed to marry in California. Proposition 8 took away that right. Same-sex couples in California sued to overturn Proposition 8, and a federal judge ultimately found Proposition 8 unconstitutional. When the United States Court of Appeals for the Ninth Circuit affirmed the judge’s decision, gay marriage opponents attempted to revive Proposition 8 in the Supreme Court.
Windsor challenges Section 3 of the Defense of Marriage Act (DOMA) which defines marriage as “a legal union between one man and one woman as husband and wife,” and also defines a spouse as “a person of the opposite sex who is a husband or a wife.”
The BBA works to advocate for access to justice for all, including the right of all persons to equality under law. The BBA has been a leader when it comes to the rights of same-sex couples. Whether we use the phrase marriage equality or same-sex marriage we are talking about the equal treatment of same-sex couples. In October 2002, the BBA filed a brief in Goodridge v. Department of Public Health, arguing that denying marriage licenses to same-sex couples in Massachusetts violated the state constitution. Three years later, in January 2005, the BBA filed another brief in Cote-Whiteacre v. Dept. of Pub Health. To better understand our involvement with this important issue check out our past blogs.
The issue of whether DOMA is unconstitutional now lies in the hands of the US Supreme Court. We urge the Court to strike down this discriminatory act. Stay tuned…we will report back once arguments in both cases have been heard. Arguments in Perry begin March 26 and arguments in Windsor begin March 27.
- Kathleen Joyce
Director of Government Relations
Boston Bar Association
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