5 Things You Need to Know About Gay Marriage and the Supreme Court

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 California’s 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 California’s 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 DOMA’s 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 Arizona’s 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 DOMA’s 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 state’s 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 Court’s opinions in the Supreme Court’s 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 Kennedy’s 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 Walker’s 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 Walker’s 128 page dissection of arguments against gay marriage and his findings of fact, seemed particularly geared to appeal to Kennedy’s 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 same-sex 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 Walker’s 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 same-sex 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

Image credit: Thinkstock.


Duane B.
.5 years ago

Thank you for sharing.

Christopher M.
Christopher M.5 years ago

Why do straights get to own marriage under the law

Heather G.
Heather G5 years ago

There are double standards for homosexual couples.

Heterosexual couples can marry even if its IMPOSSIBLE for them to conceive children without outside interventions. But homosexual couples can and DO conceive children using the SAME interventions but according to the double standard they shouldn't be allowed to marry because they can't produce children. A straight woman without a uturus can NEVER produce offpsring either and no one tells her she can't marry a man!!

When homosexual couples want to marry it's "special rights" even though a heterosexual person could also marry someone of the same sex. But when only heterosexual couples can marry it's "equal rights" since homosexual people can marry someone of the opposite sex.

Homosexual marriage brings up issues of pedophilia, polygamy, and beastiality but really they are more like heterosexual marriage since a child or animal of the OPPOSITE sex chosen, and polygamy usually is several women all married to one man, and there's lots of procreation going on.

Sandra L.
Sandra L5 years ago

Albert, I have nothing agianst you, sicerely, just your desire or drive to deny rights to others. You maintain that marriage is protected by law based on it's ability to procreate but have not spoken to the fact that in many states cousins can marry but are forbidden to procreate as to protect children from harm, but are still given full marital rights. So how do you reconcile this disparity?

Kevin Brown
Kevin Brown5 years ago

No Albert I will not discuss polygamy because the ISSUE IS NOT POLYGAMY AND I WILL NOT PLAY YOUR BIGOT'S GAME OF EQUATING MARRIAGE EQUALITY FOR HOMOSEXUALS WITH POLYGAMY (I said that real loud so maybe it could sink into your troll, "pigeon chess' playing head.

Everything you say "defies logic" but you just bob and weave and pretend not to understand and repeat the same inane bullshit over and over again.

You, Albert are not the government, and you Albert don't get to say what are government's interest in marriage. As I have pointed out to you numerous times the government has many reasons to support marriage (fair transfer of property, survivor's benefits, social stability, community property, tax purposes, insuring fairness, the will of the people, civil rights of homosexuals etc., etc., etc.,) Nothing that people care about is "irrelevant to the government."

And you go back to your already debunked theory that the government "only" cares about marriage because it produces offspring. Which of course you have no proof to support and has been discredited again and again by the fact that government allows people who CANNOT PRODUCE OFFSPRING TO MARRY.

Your next generation argument is (like most of your arguments) bullshit. It is bigotry masquerading as analysis and smacks of biblical overtones (which is where I believe your true motivations actually lay).

Kevin Brown
Kevin Brown5 years ago

The analysis that since homosexuals can marry heterosexuals of the opposite sex they (somehow) have "equal rights" is inane on its face.

That is just the same as saying that under misegenation laws blacks could marry there own race and whites could marry their own race, therefore they had "equal rights."

Albert L.
Past Member 5 years ago

Thomas P.

You said, "And it also has nothing to do with bestiality, polygamy because those are crimes that nobody (gay or straight) is allowed"

Unfortunately, if you have seen my other posts polygamy is being touted in other countries, I will only name Australia this time so as not to have to have Sandra respond again [ :O) ]. They are trying to be included into their equality marriages and also in Britain, If I remember already has social security guidelines in place to answer to polygamist relationships. So the reason I bring these up is because what happens with same-sex marriage could very will introduce these types of relationships into the mix, even though you all might disagree with them.

Albert L.
Past Member 5 years ago

Thomas P.
I appreciate the idea of coming at it with tax laws. And I see your point that they are given to the couple and not the individual, if they choose to file jointly, that is.

But what is interesting is that the biggest reason to file jointly are the tax credits and deductions that are available.

For the most part these are because of children, though not always, such as Earned income credit, Child tax credit, Child and dependent care credit, Student loan interest deduction, Elderly and disabled credit, All deductions and credits of every kind relating to education, such as the Hope and Lifetime Learning Credits, student loan interest deduction and tuition and fees deduction and Adjusted gross income (AGI) phaseout threshold of $0-$10,000 for Traditional IRA deductibility.

Most of those tax breaks are because of children. And those that don't have children are not able to claim them, are they?

Also there are many couples who, though are married, choose to file separately because of a multitude of reasons(ie. Liability Issues, Diverse Pay or Deduction Scales).

Quite a few couples that don't have children would actually fair better to file separately if they took the time to look into it.

You said, "And it also has nothing to do with bestiality, polygamy because those are crimes that nobody (gay or straight) is allowed"

Unfortunately, if you have seen my other posts polygamy is being touted in other countries, I will only name Australia this time

Thomas P.
Thomas P5 years ago

Albert....this is the last time. DOMA is the whole reason the case is going before the Supreme court. I am not "adding" anything. I contrasted fed vs state law because marriages are performed on a state by state basis. DOMA is the reason couples can't file a joint tax return. That's the point I made. The issue is constitutionality, specifically, equal protection. Everybody in the present world KNOWS that DOMA is the current law, and that is why it is heading to the Supreme Court. The issue isn't whether the law applies equally to all if they abide by it, as you state, the issue is if it applies equally to all, period. That's the test.

Albert L.
Past Member 5 years ago

Kevin B.

You said, "No, it is just insane and defies all logic." in regards to the following: "homosexuals already have the same rights already given to others. If they marry someone of the opposite sex they have the same rights already given to others."

And how does this defy logic Kevin?

DOMA specifically states the marriage is a union between one man and one woman, does it not?

It doesn't say that marriage is a union between one straight man and one straight woman or any other sort of combination. It is simply, one man and one woman.

If the man happens to be homosexual, then so be it. Or the same for the woman, if she is a lesbian. But DOMA, as it is written today, does not state that homosexuals can not marry someone of the opposite sex. This means, that if they abide by that law then they are afforded the same rights and privileges as anyone else that wants to get married and abide by that law.

And as I told Thomas, the fact that the state laws might want something different does not in anyway mean that the federal government has to follow suit.

Sorry, but logic says that one man (striaght, homosexual, or other) can marry one woman(of whatever orientation she is) and have the same AND equal rights and privileges as any other married couple.
The fact that you don't like that it has to be one man and one woman does not make it not equal, just unfavorable to homosexuals that want special rights for their type of relationships.