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Why Courts Matter to Women: Women's History Month

Courts undeniably matter to women—for better or worse. Every day, they decide cases involving the right to have an abortion, to access contraception, to obtain affordable health care coverage, to equal protection under the law, and to fair treatment for women on the job. As March is women’s history month, it is an opportune moment to examine some pending and recent court cases that matter to women.

Two significant cases pending before the Supreme Court, Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius, deal with contraceptive coverage under the Affordable Care Act (“ACA”). This month, the Supreme Court heard arguments regarding whether for-profit companies must comply with a portion of the ACA requiring that women receive health insurance coverage for birth control. The employers argue that they have a right under the Religious Freedom Restoration Act and the Free Exercise Clause of the First Amendment to refuse to grant this coverage based on their religious objections to certain forms of birth control. In essence, they claim that corporations have the liberty to impose their religious beliefs on women and their families, denying women access to critical health care coverage and interfering with a woman’s right to make personal health care decisions for herself. Of course, a for-profit corporation is not a “person” capable of exercising religious beliefs, just as a corporation may not exercise other individual and personal rights such as the right against self-incrimination, and the birth control coverage requirement applies to the company, not to the individuals who own it. Further, even if a for-profit corporation could exercise religion, the birth control coverage requirement does not amount to a “substantial burden” on religious exercise—the standard the companies would need to prove—and including birth control in employee health plans furthers compelling government interests in advancing women’s health and equality and is the least restrictive means of so doing. The NWLC filed an amicus brief in support of the contraceptive coverage requirement in both cases. Read more »

Real Benefits for Women Now That DOMA Has Been Struck Down!

Today, the Supreme Court struck down the Defense of Marriage Act (DOMA), which provided that only a marriage between a man and woman would be recognized under federal law. The Court found that this provision of DOMA violated the Equal Protection Clause of the Constitution. This decision is historic in its recognition that the Constitution provides important protection against discrimination against same-sex relationships. 

Moreover, this ruling will have a huge practical impact, providing access to important benefits previously denied to same-sex couples. As the Court wrote, "By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound." The practical impact of this victory is particularly significant for women. Women make up about 53% of LGBT adults and 51% of same-sex couples, and women in same-sex couples are more likely than men to marry their partners. In fact, the Williams Institute found that 62% of same-sex couples who married or acquired some other type of formal legal status were female, in the eight states for which data is available. 

Because women are more likely than men to be poor, female same-sex couples are at particular risk of financial instability. Read more »

What Does Sex Discrimination Have to Do with Marriage Equality?

It's marriage equality week! Tomorrow, the Supreme Court will hear arguments challenging the constitutionality of Proposition 8, which revoked same-sex couples' right to marry in California. The day after that, the Court will consider the constitutionality of Section 3 of the federal Defense of Marriage Act, which provides that same-sex married couples cannot be considered "married" under federal law. There are lots of reasons why we will be watching these cases closely. In human terms, both cases have could have a dramatic impact on the lives of same-sex couples. Indeed, they have the potential to be historic civil rights milestones — moments when the arc of the universe curves toward justice.  Read more »

Discrimination Based on Sexual Orientation Should Be Presumed Unconstitutional

For forty years, the Supreme Court has held that the government may not impose laws that treat men and women differently based on an ‘interest’ in perpetuating traditional gender roles. The Court should also hold that the government may not decide who is permitted to marry based on traditional gender stereotypes about who men and women should love, the National Women’s Law Center argued in an amicus brief filed today in Hollingsworth v. Perry—the case in which the Supreme Court will decide the constitutionality of Proposition 8, the California ballot measure that overturned the California Supreme Court's ruling that same-sex couples have a right to marry. Tomorrow, the Center will file the same brief in United States v. Windsor, the case before the Supreme Court challenging the constitutionality of the provision of the Defense of Marriage Act (DOMA) that bars the federal government from recognizing marriages of same-sex couples. Read more »

Supreme Court to Decide Whether to Hear DOMA and Prop 8 Marriage Equality Cases on Friday

This Friday, November 30, the Supreme Court will decide whether to hear the so-called marriage equality cases: suits challenging the legality of Section 3 of the Defense of Marriage Act (“DOMA”), which defines marriage as between one man and one woman at the federal level, and Proposition 8, the California provision banning same-sex marriage there. The Court will announce next Monday whether it will hear any of those cases.

Each of the laws has been struck down by lower courts. The First and Second Circuit as well as a federal district court in the Northern District of California invalidated Section 3 of the DOMA under the federal equal protection clause, while the Ninth Circuit ruled that Proposition 8 was constitutionally impermissible for the same reason. Read more »

Second Circuit Rules DOMA Unconstitutional

This Thursday, the Second Circuit ruled 2-1 that Section 3 of the Defense of Marriage Act (DOMA) violates the Equal Protection Clause of the U.S. Constitution. DOMA defines marriage under federal law as between one man and one woman. The Second Circuit’s ruling continues a recent string of decisions striking down Section 3 of DOMA, which began with the Northern District of California’s ruling in Golinski v. OPM in February and continued with the First Circuit’s ruling in Gill v. OPM

In Windsor v. United States, the Second Circuit concluded that laws discriminating against gays and lesbians were subject to “heightened” or “intermediate scrutiny” under the Constitution. According to the Court, heighted scrutiny applies based on the history of discrimination against gays and lesbians and their relative political disempowerment. Heightened scrutiny is the same constitutional standard of review that applies to gender and the Second Circuit here used gender discrimination as an analogy to the discrimination faced by gays and lesbians. Laws subject to heightened scrutiny are presumed to be unconstitutional, unless the challenged legislation is shown to be at least substantially related to an important purpose. In other words, the justification for the law must be “exceedingly persuasive.”

The Second Circuit found that the DOMA failed to meet heightened scrutiny because the purposes given for the law — uniformity at the federal level on marriage, conservation of federal resources, preserving a traditional definition of marriage, and “responsible” child-rearing — were not promoted by the law. Read more »

Update: Connecticut District Court Continues Trend of Finding DOMA Unconstitutional

Tuesday, the U.S. District Court of Connecticut joined the Northern District of California, the Southern District of New York, and the First Circuit in holding that Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for the purposes of federal law as between one man and one woman, violates the Equal Protection Clause of the Constitution.

In Pedersen v. OPM, Judge Vanessa L. Bryant concluded that gays and lesbians are entitled to significant constitutional protection because of the history of discrimination against them. She rejected arguments made by a group of Republican leaders of the House of Representatives, who have taken up defending DOMA in the courts after the Department of Justice refused to do so. The Pedersen case involved six same-sex couples and a widower, all of whom had been married legally under the laws of Connecticut, Vermont and New Hampshire, and were denied federal benefits. Judge Bryant declined to apply “heightened scrutiny” to Section 3, because the provision could not survive “under even the most deferential level of scrutiny.” Read more »