Defense of Marriage Act: Windsor v. U.S.
ISSUE: Does DOMA violate equal protection guarantees in
the Fifth Amendment's due process clause as applied to same-sex couples
legally married under the laws of their states?
CASE: Windsor v U.S. - A woman legally married to another woman was forced to assume a bigger tax bill than other married couples because her marriage wasn't recognized.
THE ARGUMENTS: Federal
courts have not yet addressed the federal law's other key provision:
states that do not allow same-sex marriages cannot be forced to
recognize such unions performed in other states. Traditionally,
marriages in one jurisdiction are considered valid across the country.
THE OUTCOME: There are
many options. The simplest solution would be for the court to dismiss
the appeal on standing grounds, or who has a right to bring a case
before the court. That would leave the lower courts or the other
branches to decide who would defend DOMA. But if the court strikes down
the benefits provision -- the only part of DOMA at issue here -- that
would create many unanswered questions, especially in those states that
currently ban gay marriage.
California ballot measure (Proposition 8): Hollingsworth v. Perry
ISSUE: Does the
Constitution's 14th Amendment guarantee of "equal protection" prevents
states from defining marriage as being only between one man and one
woman?
CASE: The "Prop 8"
case, as it has become known, has been down a complicated legal road.
California's Supreme Court ruled same-sex marriages were legal in 2008.
After the statewide ballot measure banning them passed with 52% of the
vote later that year, gay and lesbian marriages were put on hold. Then a
federal appeals court in San Francisco ruled the measure
unconstitutional. In its split decision, the panel found Proposition 8
"works a meaningful harm to gays and lesbians" by denying their right to
civil marriage.
THE ARGUMENTS:
California is the only state that accepted, then revoked, same-sex
marriage as a legal right. The measure's supporters asked the justices
to preserve the will of the voters in this politically charged social
issue. Opponents of Prop 8 seek a court-ordered expansion of the
"traditional" views of marriage.
THE OUTCOME: With so
many options, the simplest one would be to "DIG" it -- dismiss the case
as "improvidently granted," meaning the larger constitutional issues
would not be settled, at least now. That could throw the case back to
the lower courts to sort out the jurisdictional issues and perhaps allow
another voter referendum next year on gay marriage. A sweeping ruling
on whether same-sex marriage is a fundamental constitutional right seems
unlikely.
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