5 FAQs About the Supreme Court’s Upcoming Gay Marriage Decisions

The United States Supreme Court on Friday issued notice that it will take up two important gay marriage cases that, potentially, could spell the end of the federal Defense of Marriage Act and gay marriage bans across America.

Here are five things you need to know about the Supreme Court’s decision to take up these cases.

1) Which Cases Are Being Heard by the SCOTUS? — The Supreme Court handed down notice on Friday that it would take the two leading cases that have gay rights groups excited: Hollingsworth v Perry (formerly Perry v Brown and Perry v Schwarzenegger), otherwise known as the Proposition 8 case, and Windsor v United States in which 83-year-old Edith Windsor is challenging DOMA on grounds that it unduly burdened her in paying over $300,000 of extra estate tax on her deceased wife’s estate for no other reason than, per DOMA, the federal government is not recognizing their marriage.

In granting these two cases certiorari the Supreme Court also issued notice that it wishes to take up another issue which is vitally important in both cases, that of Article III standing.

2) What Does the Supreme Court Mean by Article III Standing? —  In its simplest terms, legal standing  means whether a person or group has the right to bring a case in court.

Article III of the United States Constitution restricts federal courts from deciding “controversies” which essentially means the courts cannot be invoked simply to end an ideological dispute. The Supreme Court holds that in order to have standing, a person or group pursuing legal action must have suffered a direct and concrete injury. An ideological objection is not, of itself, sufficient to grant standing.

The question of whether Proposition 8′s defenders have standing to appeal Judge Vaughn Walker’s 2010 decision overturning Proposition 8 has always been controversial.

The lowers courts have sided with defendant intervenors saying that they do have standing. It was assumed that once the 9th Circuit Court of Appeals had decided this and heard defendant intervenors’ appeal of the Proposition 8 ruling, that the matter was settled. However, the Supreme Court has now signaled it wishes to take up the issue. Were the court to find the defendant intervenors do not have standing, the appeal would be moot and Judge Vaughn Walker’s ruling overturning Proposition 8 would go into effect.

Furthermore, the Supreme Court has also given notice that it would like to look at whether House Republicans have Article III standing to intervene in the Windsor v United States case.

This question is incredibly interesting because if the court were to find that BLAG lawyers do not have standing, it would mean that, at the very least, doubt would be cast as to their legal standing to defend the law in all other DOMA cases, and potentially rule out their defending of similar laws in the federal government’s stead.

3) When Will The Cases Be Heard/The Decisions Handed Down? — Assuming the schedule runs as expected, it is likely that the court will hear arguments in late March with decisions expected in mid to late June.

4) How Have Gay Rights Groups/Anti-Gay Groups Reacted? — The reaction has been universally positive from gay rights groups. Despite misgivings over the Supreme Court taking up the Proposition 8 case, as outlined previously, gay rights groups appear ready for this fight.

Human Rights Campaign President Chad Griffin, who also co-founded the American Foundation for Equal Rights (AFER), the sole sponsor of the Perry lawsuit, released the following statement:

Today is a milestone day for equal justice under the law and for millions of loving couples who want to make a lifelong commitment through marriage.  The passage of Proposition 8 caused heartbreak for so many Americans, but today’s announcement gives hope that we will see a landmark Supreme Court ruling for marriage this term.  As the Court has ruled 14 times in the past, marriage is a fundamental right and I believe they will side with liberty, freedom and equality, moving us toward a more perfect union as they have done in the past.

Interestingly, the National Organization for Marriage (NOM), one of Proposition 8′s key backers, also praised the Supreme Court for taking up the Proposition 8 case, believing that the anti-gay marriage side can prevail.

Said NOM chairman John Eastman:

“We believe that it is significant that the Supreme Court has taken the Prop 8 case,” said John Eastman, NOM’s chairman and former Dean (and current professor) at Chapman University School of Law. “We believe it is a strong signal that the Court will reverse the lower courts and uphold Proposition 8. That is the right outcome based on the law and based on the principle that voters hold the ultimate power over basic policy judgments and their decisions are entitled to respect.”

“Had the Supreme Court agreed with the lower courts’ decisions invalidating Proposition 8, it could simply have declined to grant certiorari in the case.”

I should interject that Eastman inferring from the Court’s decision to take up the case that this somehow increases their likelihood of victory is optimistic but not necessarily true–certiorari does not necessarily mean the Supreme Court disagrees with the lower courts. It could simply mean the SCOTUS believes there are questions that must be given definitive answers by the court, and lines of legal reasoning that must be explored and tested.

There are, however, a few things we can infer from the court’s decision to take up these two cases.

5) What Can We Infer From the Decision to Take On These Cases?As previously explained, the Windsor case is extremely important because it is believed that, through the Windsor challenge, DOMA Section 3 may finally be struck down. Also, because it is the Windsor case that tackles head on whether the federal government can legitimately define “marriage” and “spouse” as being limited to heterosexuals, there could be a wider impact on state gay marriage bans were DOMA to be found unconstitutional.

The fact the Supreme Court has chosen to take on the Windsor case and the Proposition 8 case, these two cases which tackle fundamental questions over the legitimacy of the argument that there is in fact a constitutional right to marriage equality, would appear to signal the Supreme Court is gearing up for a broader ruling,

We can also infer the court wishes to clarify some issue of Article III standing, probably on the topic of defendant intervenors and the question of who does have standing if the state or federal government declines to defend a statute.

However, it should be noted that even though the Supreme Court has chosen to take up these cases, it has also reserved a procedural avenue by which it could choose to not rule on the questions before the court, therein allowing the lower court rulings to stand.

The Supreme Court may yet choose to grant certiorari in another case, that on whether Arizona can legitimately define away gay state worker’s rights to domestic partnership benefits.

As a final note, the Supreme Court’s decision to take up the Proposition 8 case leaves in force the 9th Circuits stay on Judge Vaughn Walker’s ruling, therefore while gay marriage may be law in California soon, it still remains on-hold for the near future.


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


Image credit: Thinkstock.


Kathy Perez
Kathy Johnson4 years ago

live and let live. love and let love. Love belongs to everyone

John Hablinski
John Hablinski5 years ago

Bill wrote: I wonder if this court will attempt to be fair in their decision making?
Some will, some will not and indeed some have already made up their minds and the case isn’t scheduled until sometime in March. I’m afraid the real question is how many Justices will attempt to be fair in their decision making? One would most sincerely hope that of the 9 surely 5 will see this as what it is, i.e. a Human Rights case and not merely a Gay Rights case. Marriage in the US is a legally binding contract much the same as any other contract. Attached to the contract are some special benefits granted by the various governments. These include tax and inheritance rights etc. various religions also have a sacrament of marriage or in some way perform a ceremony to recognize and/or bestow a blessing upon the union. It is important to note one must obtain permission, from a government in the form of a license before any religious ceremony may occur. I don’t believe our constitution, when examined, will allow a right or privilege granted to one group of free citizens be denied to another group of free citizens merely because of who they are. We all anxiously await the court’s decision.

pam w.
pam w5 years ago

After Scalia's history? Bill....I can't imagine it.

Bill Eagle
Bill Eagle5 years ago

I wonder if this court will attempt to be fair in their decision making?

John Hablinski
John Hablinski5 years ago

Kathleen, I rather expect another 5/4 decision with Justice Kennedy being the probable deciding vote. I just read his Wikipedia entry regarding his previous decisions on Gay issues and he seems someone on which hopefulness may be placed but success is not guaranteed. Oremus.

Kathleen Pfeiffer

I'm just worried with the particular make up of this court! They could set everything back with just 5 wrong votes.

Brenda K.
Brenda K5 years ago

Lets hope the courts make right the wrongs of those before them. Live and let live.

Jane H.
Jane H5 years ago

Live and let live! I have great hope that the Court will do the right thing.

Nils Lunde
PlsNoMessage se5 years ago


John Hablinski
John Hablinski5 years ago

BMutiny, you are undoubtedly correct concerning where the nation will be in 10 years. Alas the question is where is SCOTUS today? One can’t overlook the Citizens United decision which undid a century of what was certainly thought to be settled law. The Roberts’ Court has shown itself to be very unpredictable. Personally I don’t see how we can disallow one group of free citizens a right or privilege allowed to another group of free citizen merely because of who they are. Scalia, ever the Originalist has already chimed in saying the framers could never have imagined such a thing. I think we can be sure of what his vote will be. And then there was Obamacare…