A Breakdown of What’s Happening at the Supreme Court for DOMA and Prop 8
The day we’ve been waiting for is upon us: Our rights are being considered by the Supreme Court starting today on two separate same-sex marriage cases, one on California’s Proposition 8 and the other on the federal Defense of Marriage Act (DOMA).
Tuesday, March 26, is the Prop 8 case, Hollingsworth vs. Perry
Wednesday, March 27, is the DOMA case, United States vs. Windsor
Arguments will be heard today, transcripts and audio of the day’s arguments will be released online this week, and final decisions are expected in June.
For about an hour on Tuesday, the Supreme Court will hear about Prop 8. Interestingly enough, California Governor Jerry Brown and Attorney General Kamala Harris have declined to defend Prop 8, so the case’s conservative backers are doing it themselves. The legal team for Dennis Hollingsworth, the case’s namesake defendant who runs the website ProtectMarriage.com, will try to lay out evidence to defend Prop 8, which was a ballot vote that passed in November 2008, stating that only marriage between a man and a woman is valid or recognized in California.
According to New York Magazine’s Joe Coscarelli, “If the court rules that Hollingsworth’s team doesn’t have the standing to defend the amendment, the ruling reverts to an earlier decision which struck down Prop 8, but may only apply within the state, or even just to those who filed the initial suit, with the nationwide consequences still unknown.”
Opposite Hollingsworth is Kristin Perry, who was denied a marriage license in Berkeley. She has four children with her partner Sandra Stier.
Attorneys Theodore Olson and David Boies represent Perry and will be presenting the argument of why this issue shouldn’t be decided on by public vote.
“Solicitor General Donald Verrilli Jr. will then have 10 minutes and will explain why the Obama administration believes Prop 8 should be struck down,” writes Coscarelli. “The government will argue on grounds referred to as the ‘eight-state solution,’ which would apply only to states where gay marriage is banned, but same-sex civil unions are allowed (California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island). Verrilli will argue that this violates the equal-protection clause of the Constitution. That case has been called ‘quite modest,’ while others have argued, ‘If the Court takes the President’s argument seriously, the justices need not stop at just 8 states. The President’s theory could invalidate all marriage discrimination against gays.’”
CBSnews.com offers a rundown of the court’s choices—whether to protect the right to same-sex marriage in 50 states, zero states, nine states or one state. Or dismiss the case completely.
As for DOMA, “If the court is to establish a constitutional right to same-sex marriage, it will be in [the Prop 8 case] and not in a narrower one to be argued on Wednesday about the federal Defense of Marriage Act,” according to Adam Liptak for The New York Times. “Still,” Coscarelli writes, “the 1996 federal law applies to more than 1,000 benefits that married couples have, and potentially violates the equal-protection clause of the Fourteenth Amendment.”
Edith Windsor, the case’s namesake and now “the face of the DOMA case, was forced to pay $363,053 in estate taxes after her partner of more than 40 years died. DOMA, too, faces questions of standing because the Obama administration has declined to defend it, leaving it to Republicans in the House to step up. But even if the court strikes the law down, ‘the Court could write the decision narrowly, opening federal benefits to married gay couples but not broadly addressing the question of marriage as a fundamental right.’”
It’s important to note that if DOMA is overturned, that doesn’t automatically mean you can run out and obtain a marriage license in, say, Alabama, Georgia or Mississippi (states that have constitutional bans on same-sex marriage). According to GLAAD, “It will mean the federal government has to recognize the legal marriages of same-sex couples. Such a ruling will not require any state to [extend marriage to same-sex couples] that has not already done so.”
Douglas Kmiec, a legal scholar writing at the Huffington Post, predicts both DOMA and Prop 8 will fall. “Because of its irrational allocation of federal benefits, it is widely speculated that the Court will invalidate DOMA,” he writes. “The fate of Prop 8 is closer to call depending upon whether Justice Kennedy acts yet again as the swing vote joining the more progressive Justices Ginsburg, Breyer, Sotomayor and Kagan to invalidate the law.”
Jeffrey Toobin writes in The New Yorker, “At this point, not even the Supreme Court can reverse the march toward equality. The question about marriage equality for all Americans is not if it will pass but when. The country has changed, and it’s never going back to the way it was. Though the battles continue, the war is over.”
Currently, nine states—Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Washington, and Vermont—and Washington, D.C. have enacted marriage equality. In the November 2012 election, Maine, Maryland and Washington made history by becoming the first states to pass a ballot referendum on marriage equality.
New Mexico and Rhode Island explicitly respect out-of-state marriages of same-sex couples, while eight states now offer broad protections short of marriage. Colorado, Delaware, Hawaii, Illinois, New Jersey, and Rhode Island allow civil unions, while California, Oregon, and Nevada offer broad domestic partnership. Wisconsin has more limited domestic partnership.
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