Bending the arc of history: The case for marriage equality

» Read AFJ’s response to the Supreme Court decisions on marriage equality

On March 26 and 27, the Supreme Court heard arguments in cases in which the stakes could not be higher. In the case of Hollingsworth v. Perry, The Court will hear arguments on the constitutionality of Proposition 8, which banned same-sex marriage in California. It also will hear United States v. Windsor, a challenge to a key section of the so-called Defense of Marriage Act (DOMA). Lower courts have ruled both DOMA and Proposition 8 unconstitutional.

If the Court strikes down Section 3 of DOMA, it will make millions of legally-married same-sex couples truly equal in the eyes of the federal government. It will do the same for same-sex couples who want to marry in the future.

A ruling against Section 3 would send an important message: The nation’s highest court refuses to countenance discrimination. But it also would have immediate, concrete benefits, ensuring married same-sex couples enjoy equal access to a huge range of benefits that the rest of us take for granted.

  • DOMA denies Social Security death benefits, spousal disability benefits and survivor benefits to same-sex spouses.
  • DOMA prevents same-sex spouses from taking family medical leave.
  • DOMA even can separate spouses of different nationalities.

In fact, DOMA denies married same-sex couples more than 1,000 federal protections and responsibilities provided by marriage.  ((Respect for Marriage Coalition, The Supreme Court

The stakes are every bit as high in the case involving Proposition 8. If the Supreme Court upholds the 9th Circuit Court of Appeals ruling that Proposition 8 is unconstitutional, it will restore the right to marry for same-sex couples in California and, perhaps, send an important signal to the rest of the nation. It would be a decision for family values in the truest sense of the term.1

The last time the U.S. Supreme Court ruled in a similar case about who can get married, it bent the arc of history toward justice, ruling that banning interracial marriage is unconstitutional. Now the Court has the opportunity to bend the arc of history toward justice again, by ruling for marriage equality.

An Explanation of the Cases and the Stakes

The day before the Supreme Court decided to accept these cases, Prof. Kenji Yoshino of New York University School of Law and journalists Jeffrey Toobin and Emily Bazelon discussed them with AFJ President Nan Aron:


The Hollow Case Against Marriage Equality

The case against marriage equality, as presented by proponents of Proposition 8 boils down to this: Marriage is a good thing.  Marriage is important to procreate the species, and children are better off if their parents are married.2

Well, yes.  But at no point do opponents of marriage equality explain why allowing same sex couples to marry would undercut any of these worthy goals.

As the 9th Circuit Court of Appeals put it in rejecting this argument: “There is no rational reason to think that taking away the designation of ‘marriage’ from same-sex couples would advance the goal of encouraging California’s opposite-sex couples to procreate more responsibly.”3 Proponents of marriage discrimination offered no evidence to support such a theory.

Indeed, by the logic of those favoring Proposition 8, in which who gets to marry is related directly to who can procreate, states also should be banning the infertile and aged from marrying – not to mention couples who simply don’t want children.

As for the impact on children, the federal district court hearing the Proposition 8 case noted that the most likely impact of banning same-sex marriage would be to make it “less likely that  California children will be raised in stable households” – by reducing the number of families who can be married.


In 1835 Alexis de Tocqueville wrote that, “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” In a nation in which not just political, but the most fundamental human questions can become judicial questions, these cases illustrate something else: The critical importance to American life of who sits on the United States Supreme Court, and on all of our federal courts.

At a minimum, it’s hard to see how the passage of Proposition 8 benefitted children like the six-year-old who, on the day the referendum passed, came up to his mother with tears running down his face and asked if they still were a family.4

So it’s no wonder that at trial, when the court asked a lawyer for Proposition 8 proponents what harm would come to opposite sex married couples if gay and lesbian couples could marry, all he could say was “I don’t know.  I don’t know.”5

Perhaps most striking about the case is the Proposition 8 proponents’ cold, statist view of marriage – viewing it as purely a utilitarian institution designed to further the aims of government.  As the attorneys challenging Proposition 8, (including Theodore Olson, who served as Solicitor General under George W. Bush) point out, in the entire 65-page brief filed for upholding Proposition 8, one word never appears: “love.”

Same-sex couples “agree with proponents that marriage is a unique, venerable and essential institution,” Olsen and co-counsel David Boies write.  “They simply want to be a part of it.”6







  1. The Supreme Court has several options in the Proposition 8 case, ranging from upholding the ban on same-sex marriage in California, to requiring all states to recognize same-sex marriage, to options in-between. It also could rule that those trying to reinstate Proposition 8 don’t have “standing” – meaning they don’t have the right to sue. For a full discussion of the options, see Marty Lederman, “The Court’s five options in the California marriage case” SCOTUSblog, March 1, 2013. 

  2. See generally, Hollingsworth v. Perry, #12-144, Brief of Petitioners: 

  3. Except as otherwise noted, all data and quotes from this point forward are from Hollingsworth v. Perry, #12-144, Brief for Respondents: 

  4. Marriage Equality USA, Prop. 8 Hurt My Family; Ask Me How, Jan. 2009, p.4 

  5. Just for the record: A 2009 study found that permitting same sex couples to marry had no adverse impact on marriage, divorce and abortion rates, the percent of children born out of wedlock and the percentage of single mother households.  And in the first five states to legalize same sex marriage, divorce rates declined, even as they increased nationally. Brief for Respondents, note 4, supra. 

  6. [7] Siri Agrell, “A 40-year wait for wedded bliss,” The Globe and Mail, March 31, 2009 

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