An Empty Chair? How Will The Election of a New Supreme Court Justice Shape The Development of LGBT Rights in the US?
Introduction
On June 26 2013, the United States Supreme Court issued its ruling in United States v Windsor. In its judgment, the Supreme Court ruled 5-4 that Section 3 of the Defense of Marriage Act – which defined marriage for Federal purposes as “a union between one man and one woman as husband and wife” – was unconstitutional.
In this case, a party to a same-sex marriage solemnized in Toronto, Canada and recognized by the State of New York, died, leaving her entire estate to her remaining spouse. Her remaining spouse attempted to claim the Federal estate tax exemption for surviving spouses. The Internal Revenue Service found that the Federal estate tax exemption for surviving spouses did not apply to same-sex marriages, since Section 3 of the Defense of Marriage Act provided that the term “spouse” applied only to unions between a man and a woman. Accordingly, the Internal Revenue Service compelled the remaining spouse to pay estate taxes, in the sum of $363,053.
The ruling in United States v Windsor – in particular – the striking down of Section 3 of the Defense of Marriage Act – led to a seismic shift in Federal executive policy and US societal thinking, as Federal executive agencies and departments extended the Federal rights, privileges and benefits available to heterosexual spouses to same-sex spouses. Indeed, the Department of Homeland Security began to recognize same-sex marriage when considering applications for US citizenship.
Precisely 2 years later, on June 26, 2015 the US Supreme Court issued another ruling, which heralded the start of a new era in LGBT rights. In Obergefell v Hodges, the Supreme Court ruled 5-4 that the fundamental right to marry is guaranteed to same-sex couples by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Accordingly, the Supreme Court ruled that all US States must issue marriage licenses to same-sex couples and all US States must recognize same-sex marriages solemnized in other jurisdictions.
The judgment was a landmark victory for equality campaigners, for whom recognition of same-sex marriage was long overdue. The Supreme Court ruling in Obergefell v Hodges re-affirmed the status of the US as an advocate of fundamental freedoms on the world stage and sent a powerful message to the world that discrimination based on sexual orientation would not be tolerated in the 21st century.
The Future of LGBT rights in the US?
It is noteworthy that, in both of the landmark cases referred to above, the justices were deeply polarized. In both cases, the overall outcome of the case was determined by the solitary justice who broke the judicial deadlock.
The sad demise of Justice Antonin Scalia in February 2016 has left a vacancy in the Supreme Court. The Supreme Court currently has a 4-4 split of liberal and conservative approaches on some issues and therefore, there is scope for the new Supreme Court Justice to have a real impact on shaping the future of US justice.
President Trump will almost certainly select a conservative justice to replace Justice Scalia. Although the President’s nomination will have to be approved by the Senate’s Judiciary Committee and indeed, the entire Senate, the Republicans have a majority in the Senate and therefore it is likely the President’s nominee will be endorsed. We hope that Justice Scalia’s replacement will embrace the progressive approach to LGBT rights adopted in recent years and will continue to uphold the core American principles of fairness, equality and justice for all.
