Waiting For the Decision on United States vs Windsor

STORY BY Liz Willis

Published: June 26, 2013

The landmark cases before the Supreme Court has stirred a growing debate among conservatives, local and national communities, as well as the LGBTQ community. While waiting on the decision by the US Supreme Court on United States v. Windsor, No. 12-307 and others, a debate has begun on how the case will redefine legal equality in the United States. Some have argued Marriage Equality is not important and that the focus has begun to be too much on this particular issue. However, as it stands, the decision made by SCOTUS will have the power to effect marriage, education, and voting. A decision by SCOTUS to strike down DOMA will have the ability to transform these three social institutions.

The constitution provides there should be “equal protection of the laws”. It has been debated whether or not this command means simply equal treatment from the government. Given the mix of liberal and conservatives on the Supreme Court, there will likely to be a mix of opinions. There are different interpretations of equality by the justices leading to two main differences: formal equality v. dynamic equality. One implies that equality is simply what it implies, equality between all individuals protected by the law. A more dynamic form of equality where both historical events and disparity between different groups is considered. Windsor's case is a prime example of how same-sex partners are affected financially by not being recognized by federal law. Windsor's case is challenging the federal Defense of Marriage Act (DOMA), which defines marriage as the union of man and woman, as well as Proposition 8, a voter initiative that banned same-sex marriage in California.

As of now gay Americans have yet to achieve formal legal equality in the United States. We do not have protection from job discrimination and can be fired simply for being gay. Therefore, one of the questions needing to be asked is whether or not this case is simply about marriage equality. This case has further implications and is not simply about marriage equality, but legal equality. It also suggests that other issues will begin to come before SCOTUS affecting not only job discrimination, but the largely ignored issue of gender discrimination and laws to protect transgendered individuals. A loop-hole does exist where a transgendered woman, who has not yet had gender reassignment surgery and is still legally a man, can marry her female partner. Therefore, this case does suggest a dynamic form of equality where the modern disparity between straight Americans and gay Americans needs to be considered. 

This case is a signal of change and at the same time an indication of growing demand for equality. It is not simply marriage equality, but laying the foundation for further push towards full equality. Is it constitutional for same-sex partners to have unfair treatment under federal law by not having the ability to have their estate protected from taxes? Is this case setting a precedent for future cases involving other members of the LGBTQ community? Regardless of individual positions, there is a general consensus that a person's rights should be recognized and protected under the law. The union in question is a union between two people of the same sex having no baring on the rights of a union between a man and woman. However, the union of same-sex partners has stirred a large debate over its legality. Considering that in the time the United States v. Windsor case has been under consideration by SCOTUS several other states have adopted marriage equality laws, it indicates a shift. Windsor's case is not uncommon and would certainly not be the last brought before the court. Therefore, I would ask that the court consider the implication of not striking down DOMA. It's a decision with one central tenant – equality. Not striking down the decision, regardless of the court's explanation, will create the sentiment that same-sex partners are not equal meaning gay Americans are not equal. Therefore, I ask that the court consider the perception of a decision not striking down DOMA and its effect on myself and other Americans wishing to considered equal under the law. 

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