5 Things You Need to Know About Gay

Marriage and the Supreme Court

by Steve Williams

November 28, 2012

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This Friday, the United States Supreme Court is expected to take up several gay marriage-related
cases that could in time see parts of the federal Defense of Marriage Act struck down and
Californias Proposition 8 nixed. Here are five things you need to know about those cases.

1) What Are the Gay Marriage Cases Before the Supreme Court? Perhaps the most high
profiled case up for judgement is Hollingsworth v. Perry (formerly Perry v. Brown and Perry v.
Schwarzenegger), this of course being the case involving Californias Proposition 8, the 2008
constitutional amendment that voters used to define away gay marriage in California.
In addition to this, there are as many as eight Defense of Marriage Act (DOMA) cases, among
them Golinski v. United States Office of Personnel Management, where Golinski, a government
employee, is suing the federal government to be able to add her same-sex spouse to her health
insurance. Her case is backed by the Obama administration who in February 2011 found that
after review it could no longer defend as constitutional Section 3 of the Defense of Marriage Act.
Since then, the Republican-led House has pumped over $1.5 million of taxpayer money into
DOMA cases to try to defend the law.
Other noteworthy cases include Gill v. OPM, and Windsor v. United States.
The latter case, Windsor v. United States, saw the Second Circuit Court of Appeals agree with a
lower court and rule in favor of senior citizen Edith Windsor that DOMAs denial of federal
benefits is unconstitutional. In so doing, the appeals court used intermediate scrutiny as its test
level for whether the law should stand. This was the first time that any gay rights case has been
given the medium review level, and thus it will be interesting to see how the Supreme Court
deals with the case. Some analysts have predicted that the Windsor v. United States case could in
theory lead to DOMA being struck down and, as a result, every state law banning gay marriage
being overturned.
Lastly, the SCOTUS will also be taking up a case dealing with Arizonas denial of domestic
partnership benefits to state employees.
It is prudent to note that it is possible for the SCOTUS to choose to take up all, none, or only a
certain number of the above cases. The court may choose to defer ruling on certain cases because
those it does take up may have wider implications for other cases.

2) Has the Supreme Court Ever Taken Up a DOMA Challenge Before? While DOMA
was voted through Congress by an overwhelming bipartisan majority and then signed by
President Bill Clinton, and while several lower court and appeals courts have struck down
DOMAs Section 3 that denies same-sex couples federal benefits, the Supreme Court has never
before taken on a direct challenge to the law.
Similarly, the Supreme Court has never before ruled on whether it is lawful for the voting
public, corralled by animus, to define away a right to same-sex marriage by amending the states
constitution. As such, these are important test cases for how the Supreme Court currently judges
same-sex marriage and its place in American law.

3) Which Justices Should We Watch Out For? As Care2 blogger and lawyer Jessica Pieklo
has noted before, analysts expect that Justice Kennedy will be the deciding vote in the
Proposition 8 case in particular.
Kennedy wrote the Courts opinions in the Supreme Courts most important gay rights decisions
Romer v. Evans (1996) which struck down a Colorado voter enacted law that specifically and
solely barred Colorado from adopting laws to ban discrimination on grounds of sexual
orientation; and Lawrence v. Texas (2003), which famously overturned a law that specifically
made sodomy between same-sex couples a crime.
With these two opinions in the bag, so to speak, we might conclude that Kennedys opinion
should be one in favor of striking down Proposition 8. But not so fast. Kennedy, writing in
Lawrence, specifically said that whether it was lawful for a state to choose to limit marriage to
opposite-sex couples remains an open question. He is, of course, also rather conservative in his
decision making and therefore guessing how he will greet the Proposition 8 case is rather
difficult.
However, it has been noted that the 9th Circuit Court of Appeals, in ruling to uphold Judge
Vaughn Walkers landmark 2010 ruling, did through their unanimous opinion state: Proposition
8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays
and lesbians in California, and to officially reclassify their relationships and families as inferior
to those of opposite-sex couples. The Constitution simply does not allow for laws of this sort.
This opinion, based on Judge Walkers 128 page dissection of arguments against gay marriage
and his findings of fact, seemed particularly geared to appeal to Kennedys framing of Romer
with which Proposition 8 has some loose, though not overriding, parallels.
Another factor we may consider not in the Proposition 8 case but rather in those dealing with
DOMA is that Justice Elena Kagan, previously a top appellate lawyer in the Obama
administration, may choose to recuse herself in cases where the Obama administration is
advocating on behalf of plaintiffs. This may also affect which cases the Court decides to take up.
One last factor that may see some of the conservative members of the Court surprise us by
deciding against DOMA is that broadly speaking, marriage, until DOMA, was always decided at
the state level. DOMA in fact impinges on a state determining what rights it may give to samesex couples for example, for purposes of tax and for certain benefits. For this reason, those
justices with a mind toward state self-governance may see the DOMA cases not in terms of gay
rights but rather as a question of whether DOMA can legitimately limit state autonomy.

4) Will Recent Success At the Ballot Help In These Cases? While the SCOTUS should not
be basing their decisions on the will of the majority, we do know that Justice Scalia, who
opposes extending the equal protection clause to encompass any other minority apart from those
disenfranchised because of race, has previously cited public opinion against gay marriage.

For this reason, recent successes at the ballot in Maryland, Washington and Maine, which broke a
30 plus losing streak for gay marriage rights, serves to highlight what is by most standards a
definitive, if not yet solidified, turning point in majority opinion on the issue.

5) Should The Supreme Court Agree to Hear All the Cases? This might sound like an
obvious question, and where the Defense of Marriage Act is concerned we can broadly say that,
yes, we wish for those cases to be taken up and the challenged parts of DOMA to be struck
down.
The Proposition 8 case has caused quite some debate, however.
There is an opinion, also expressed by the same-sex couples lawyers David Boies and Ted
Olson, that it might be better were the Supreme Court to refuse to hear the Proposition 8 case,
allowing District Judge Vaughn Walkers ruling against Proposition 8 to stand, the amendment to
be struck down and the judgment to be confined solely to California.
Advocates have highlighted this because it would appear that if SCOTUS were to take up the
Proposition 8 case, they would be faced with a wider question: if a constitutional right to samesex marriage does exist. There is a lot be gained from having the Supreme Court rule on this
question, but also a lot could be lost, namely the contention that equal protection should apply in
this case and all cases like it.
As to what the likely outcome is, advocates agree that there is a strong case against the
Constitutionality of DOMA Section 3 but would expect the SCOTUS to rule narrowly and tailor
each response to the specific questions raised by each of the DOMA cases rather than issuing a
wider ranging opinion that would strike down DOMA in one blow. Hearings on the DOMA cases
are expected to extend well into the middle of next year.
In terms of the Arizona case, predictions are the Supreme Court will deny certiorari and let the
lower court judgment stand. Were the court to take up the Arizona case, it might signal the
SCOTUS is about to be more ambitious with the questions it will tackle.
In terms of the Proposition 8 case, it seems possible the Court may also deny certiorari, allowing
the lower court ruling to stand and therein once again legalizing same-sex marriage in California.
If that were to happen, marriage licenses could be issued to same-sex couples within weeks if not
days. It is likely to be early next week before we know whether the Court has decided to grant a
hearing to the Arizona and Proposition 8 cases.

Related Reading:
States Fight Defense of Marriage Act (DOMA)

Bankruptcy Court: Defense of Marriage Act Unconstitutional

Judge Rules Section 3 of the Defense of Marriage Act Unconstitutional
Read more: defense of marriage act, doma, lgbt rights, supreme court of the united states
Image credit: Thinkstock.

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