BLOOMINGTON, Ind. -- The U.S. Supreme Court will hear arguments next week on two cases that seek to overturn bans on gay marriage. Hollingsworth v. Perry, which seeks to overturn a California voter initiative that prohibited gay marriage, will be heard Tuesday. Windsor v. United States, which challenges the federal Defense of Marriage Act, will be argued Wednesday. Indiana University experts in family and constitutional law and American public opinion concerning families are available for comment.
Public opinion not reflected in legal arguments for same-sex marriage bans
Indiana University Sociologist Brian Powell has been surveying Americans' views of marriage and family for years and has predicted that public acceptance for same-sex marriages was inevitable. Yet, even he is surprised at how quickly public support for same-sex marriage has increased.
"This is faster than I thought it would be. I cannot think of another social issue that has seen such a quick shift in public opinion," said Powell, author of "Counted Out: Same-Sex Relations and Americans' Definitions of Family" (Russell Sage Foundation, 2010.)
Powell noted that Supreme Court decisions often are both responsive to public opinion and change public opinion by legitimizing policies in the eyes of many people. Several years ago, the Supreme Court ruled against same-sex marriage in several instances. Judging from the transcripts, Powell said, there was sympathy on the court for same-sex marriage, but public support was not as strong as it is today.
"Public support has completely flipped in the last 10 years," Powell said. "The Supreme Court is hearing the case when it is clear that the movement has been unremitting in the direction of support for same-sex marriage."
Support for same-sex marriage had been increasing by around 2 percent to 2.5 percent a year in the past decade, Powell said. He attributes much of the change, ironically, to the vocal opposition. Many people who he surveyed in 2003 had never given much or any thought to the idea of same-sex families or couples, but this changed when it because a hot political topic.
"There was so much news and so many anti-same-sex marriage campaigns," he said. "They took an idea that wasn't even imaginable, but ultimately, as people thought about it, they moved from lack of support to 'Why not?'"
During this time, more people became more open about their sexuality so that it became more common for people to know others who were gay or lesbian. An "overwhelming" number of people under 30 support same-sex marriage, according to Powell's research, and their support does not change as they age. Most of the opposition has come from people 65 and older, with the opposition "literally dying off."
Powell said the arguments being presented to the Supreme Court in opposition of same-sex marriage do not reflect public opinion he has documented in his surveys. The attorneys emphasize the opposition is not for moral reasons. Yet, in Powell's surveys, moral disapproval, particularly involving parenting, was most commonly cited to explain opposition.
Another argument by opponents of same-sex marriage, he said, is that the experiences of gays and lesbians cannot be compared to discrimination experienced by racial minorities and women because a person's sexuality is a choice while his or her gender and race is not. Powell said his surveys also find this argument contrary to public opinion, with respondents to his surveys believing that genetics or even the "will of God" explains homosexuality.
Powell, Rudy Professor of Sociology in the College of Arts and Sciences, can be reached at 812-855-7624, by cell phone at 812-360-0474, and at firstname.lastname@example.org. For additional assistance, contact Tracy James at 812-855-0084, by cell at 812-369-7100 and email@example.com.
Court could make major statements on rights and equal protection
Beth Cate, an attorney and an associate professor in the School of Public and Environmental Affairs at IU Bloomington, says the cases give the court an opportunity to make major statements about individual rights to equal protection under law, and about states' rights, in the context of same sex marriage.
"This would be particularly interesting in a term in which the justices are likely to say a good deal about individual rights to equal protection under law, and states' rights, in the context of race," she said.
Cate said complicated issues related to whether the parties have "standing" may prevent the court from reaching the rights issues. "If it does reach them, it is difficult to see how DOMA's rule limiting marriage for federal law purposes to one man and one woman will survive," she said. "Neither case requires the court to go all out and declare that the Constitution guarantees a right to same sex marriage, and it seems unlikely the court would go that far now if it doesn't have to."
Cate's professional interests include constitutional law and Supreme Court decision-making, and religion in public life and governance. She can be reached at 812-855-0563 or firstname.lastname@example.org.
Crazy: Family rights and protections evaporate for some families when they move across state lines
Jennifer Drobac, family law expert and professor at the Indiana University Robert H. McKinney School of Law in Indianapolis, said there is a strong basis in the Bill of Rights and U.S. Constitution for amending or striking down the Defense Against Marriage Act so that legally performed same-sex unions are recognized in all states and so same-sex couples and their children can benefit from being a family unit just like families with heterosexual parents.
Same-sex couples can be married in nine states but if they move to Indiana, their marriage is not recognized, meaning that children who are not offspring of these parents lose inheritance and other rights and protections. Some states allow first cousins to marry, Drobac said, and if these couples move to Indiana, the state still recognizes their marriages. She said family law typically has been determined by state legislation, but it is important to note that the United States is a republic.
"It's absolutely crazy to say you can marry in Massachusetts or Iowa, but you cannot then exist as a family in states like Indiana," she said. "It discriminates against the LGBT population. For a state that prides itself on being family friendly, Indiana is penalizing people who are choosing to dedicate themselves emotionally and financially to mutual advancement and support. It's bad for families and business. That's why major corporations in the state have raised concerns about a possible state constitutional amendment that would make Indiana's ban even tighter."
Indiana Attorney General Greg Zoeller has taken a leadership role in providing legal briefs to the Supreme Court in support of same-sex marriage bans and states' rights.
Drobac and McKinney School of Law Professor Antony Page explored more stable options to marriage in their article “A Uniform Domestic Partnership Act: Marrying Business Partnership and Family Law,” published in Georgia Law Review and available through the Social Science Research Network.
Drobac can be reached at 317-278-4777 and email@example.com. For additional assistance, contact Elizabeth Allington at 317-278-3038 and firstname.lastname@example.org. The McKinney School of Law is located at at Indiana University-Purdue University Indianapolis.
Two 'extremely important' cases
Deborah Widiss, an associate professor of law in the Indiana University Michael Maurer School of Law in Bloomington, has written widely on legal issues concerning the right to marry. Her research focuses on employment law, family law and the legislative process, and the significance of gender and gender stereotypes in the development of law and government policy.
"Both of these cases are extremely important because they will clarify whether same-sex couples have the right to marry and whether lawful, same-sex marriages are valid for purposes of federal law," Widiss said. She can be reached at 812-856-1435 or email@example.com.