Hollingsworth v. Perry
Two same-sex couples -- Kristin M. Perry and Sandra B. Stier, and Paul T. Katami and Jeffrey J. Zarrillo -- are challenging California's ballot initiative that defines marriage as between a man and a woman. Although the court could rule more narrowly, this case asks the question of whether there is a fundamental right to gay marriage.
Jurisdictional issues: (potential of the case being dismissed without reaching the merits)
The original sponsors of Prop 8 -- a group called Protectmarriage.com -- are defending the law because California public officials refused to do so. Before getting to the merits of the case, the Supreme Court will decide whether the proponents have the legal right to be in Court. If the Court finds there is no legal "standing," the case will be dismissed and the District Court ruling that struck down Prop 8 will most likely stand.
Charles J. Cooper, a lawyer representing ProtectMarriage.com, argues in court papers that the California Supreme Court gave the sponsors the state's authority to defend the law and the Supreme Court should respect that.
Opponents of Prop 8 say that "standing" requires an injury and proponents of Prop 8 cannot show they will be harmed if same-sex couples marry. (Walter Dellinger, Larry Tribe and conservative former conservative federal judge Michael McConnell all think the Court will dismiss on these grounds. )
The question before the court is whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.
Prop 8 supporters' arguments: The central thrust of Cooper's arguments is that Californians who voted in favor of Prop 8 opted "in good faith" to preserve the traditional definition of marriage because they believe it continues to meaningfully serve important societal interests. Specifically, Cooper argues that marriage is "inextricably linked to the objective biological fact that opposite-sex couples and only such couples, are capable of creating new life together, and, therefore, are capable of furthering, or threatening, society's existential interests in responsible procreation and childbearing." He says that Prop 8 leaves undisturbed expansive domestic partnership laws that provide gays and lesbians with "some of the most comprehensive civil rights protections in the nation." He says the court should defer to the democratic process, and argues: "[T]he definition of marriage has always been understood to be the exclusive province of the States, which, subject only to clear constitutional constraints, have absolute right to prescribe the conditions upon which the marriage relation between their citizens shall be created."
Prop 8 opponents arguments: Theodore Olson and David Boies are asking the Court to find a fundamental right to gay marriage in the Constitution.
"The unmistakable purpose and effect of Proposition 8," they write, "is to stigmatize gay men and lesbians -- and them alone -- and enshrine in California's Constitution that they are unequal to everyone else, that their committed relationships are ineligible for the designation 'marriage' and that they are unworthy of that most important relation in life."
They dismiss the argument that Prop 8 serves the interest of promoting responsible procreation.
"There are many classes of heterosexual persons who cannot procreate unintentionally, including the old, the infertile and the incarcerated," they write.
They acknowledge that the federal system enables states to serve as "laboratories of democracy," but say "our Constitution does not permit States the power to experiment with the fundamental liberties of citizens."
The U.S. government supports the opponents of Prop 8, saying that laws that ban gay marriage should be subject to heightened scrutiny from the Courts. The government argues that Prop 8's denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, is a violation of equal protection. Six other states currently have similar laws.
In briefs, Verrilli writes that the ballot initiative "forbids committed same-sex couples from solemnizing their union in marriage, and instead relegates them to a legal status -- domestic partnership -- distinct from marriage but identical to it in terms of the substantive rights and obligations under state law."
Some Ways the Court Could Rule:
There are many ways the court could rule in this case. Among the possibilities:
At oral arguments, it didn't seem likely that the Court was ready for a broad ruling that would say that all bans on same-sex marriage violate the Constitution. The Court could strike down Prop 8 on narrower grounds and say, for example, that California could not give gay couples all the benefits of a robust domestic partnership law, but strip them of the word "marriage." Such a ruling could affect at least six other states with similar laws.
The Court could also issue an opinion specific to California's history with the gay marriage. The Court could say that California could not withdraw from gay and lesbian people the right to marry -- a right they once had -- without a rational basis for doing so. Such a ruling would apply only to California.
The Court could, of course, uphold Prop 8, which would allow states to continue to pass bans on gay marriage.
Keep in mind, there is a real chance in this case that the Court will not reach the merits. The Court might decide that the original proponents of Prop 8, who stepped in to defend the law when state officials refused to do so, did not have the legal right to be in Court. Such a ruling would mean the District Court ruling that struck down Prop 8 on broad grounds would most likely hold. Legal experts are divided on the implications of such a ruling, as there is some disagreement about whether the lower court's injunction applies statewide, or just to the couples who brought suit. Many believe that same-sex marriage will most likely resume under such a ruling, but the timing is unclear.
DOMA (Defense of Marriage Act)
United States v. Windsor
Edith Schlain Windsor is challenging a section of federal law, the Defense of Marriage Act (DOMA), that defines marriage as between a woman and a man. The law denies federal benefits to same-sex couples who are legally married in their states. Unlike the Prop 8 case, the DOMA challenge does not address whether there is a fundamental right under the Constitution to same-sex marriage.
Windsor is an 83-year-old woman from New York who married Thea Clara Spyer in 2007 after some 40 years together as a couple. When Spyer died in 2009, Windsor was denied -- under DOMA -- an exemption on federal estate taxes that she had paid on her spouse's estate.
In February 2011, the Obama administration announced that while it would continue to enforce DOMA, it would no longer defend the law. House Republicans stepped in to defend the law through the Bipartisan Legal Advisory Group (BLAG). Paul D. Clement, is the lead lawyer for BLAG.
Before the Justices can reach the merits of the case they will have to address two threshold issues. The first is whether the Court even has the jurisdiction to hear the case given that the U.S. government agrees with Windsor that DOMA is unconstitutional. The second question involves whether BLAG has the standing to defend the law. If the Court decides it does not have the power to decide the case, Windsor wins her refund, but at least for now, DOMA would remain on the books in other jurisdictions.
DOMA was passed in 1996 with wide majorities in both the House and the Senate. But since then, public opinion on gay marriage has changed radically. Today, the latest polls find that a majority of Americans support gay marriage.
Arguments in support of DOMA: Clement says that Congress was acting rationally when it passed DOMA and sought uniformity throughout the states. Similar to the arguments of supporters of Prop 8, Clement argues that in passing DOMA, Congress had a good reason to support traditional marriage. He targets the "tendency" of opposite-sex couples to produce "unintended and unplanned offspring."
"Government from time immemorial has had an interest in having such unintended and unplanned offspring raised in a stable structure that improves their chances of success in life and avoids having them become a burden on society," Clement says.
In his briefs, Clement points out that the federal government is not invalidating any state same-sex marriage laws, but instead is ensuring that federal benefits are distributed uniformly throughout the states.
He also urges the court to allow democracy to play out. The "correct answer," he tells the Court, is to leave an issue as "divisive and fast-moving" as same-sex marriage to the democratic process.
"In that process," Clement writes, "there is a premium on persuading opponents, rather than labeling them as bigots motivated by animus."
U.S. government's arguments against DOMA: The U.S. government argues that DOMA violates the equal protection clause of the Constitution.
"The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples," writes Solicitor General Donald B. Verrilli.
Verrilli argues that laws that discriminate on the basis of sexual orientation warrant heightened scrutiny from the courts. He points out such scrutiny is necessary because gays and lesbians have faced a "significant history of discrimination in this country," and that they have suffered from limited political power as evidenced by the fact that states have passed initiatives banning same-sex marriage.
Lawyers for Windsor arguments against DOMA: Windsor rejects Clement's position that DOMA is necessary to promote responsible procreation, writing in court briefs: "It is irrational, fantastical thinking to believe that the federal government's decision to treat married gay couples as unmarried under federal law will encourage straight couples to marry before having children."
Some Possible outcomes:
At oral arguments, key swing vote Justice Anthony Kennedy seemed skeptical of the constitutionality of the law. But instead of pressing equal protection concerns, he focused on federalism and states' right issues.
If the court finds that the law is unconstitutional, then same-sex couples who are legally married in their state, would be able to get federal benefits currently available to opposite sex couples.
If the court upholds the law, then the current status quo remains.
If the court rules that it has no jurisdiction to hear the case, and thus is powerless to decide the issue, then Edith Windsor will get her tax refund of $363,000. But at least for now, DOMA will remain on the books in other jurisdictions.