DOMA and Prop 8: The Supreme Court Could Punt On Gay Marriage

Another day of the Supreme Court issuing rulings on cases, another opportunity to not issue a decision on the two most anticipated cases of the year.

Despite the Court’s decision in the highly anticipated Fisher v. University of Texas affirmative action case regarding race conscious decision-making in university admissions, there is still no word on decisions for the duo of same-sex marriage cases that have been eagerly anticipated since the cases were argued earlier this year. Instead, the Court has announced that it will return Tuesday and Thursday  mornings to — presumably — issue a ruling on both cases (likely on Thursday).

In preparation of what promises to be an onslaught of intense media coverage and irrational Facebook back-and-forths here is a quick rundown on the gay marriage cases the Court is set to rule on.

In US v. Windsor the Court addresses whether or not the Defense of Marriage Act (DOMA) violates federal law by not allowing same-sex couples to have access to federal programs and laws.

DOMA was signed into law by Democratic President Bill Clinton (seriously!) and subsequently defended by both the Bush and Obama administrations. However, in 2011 the Obama White House had a change of heart and opted to no longer defend the law. This move did not allow defense of the law to falter, instead, it allowed House Republicans to step in to defend a law that has been historically defended by the Executive branch. An organization funded by factions of the House GOP is now funding DOMA's defense at the Supreme Court.

Before we go any further, it’s important to note that it is very possible that SCOTUS will not even make a ruling on the constitutionality of the question at hand in the case. This is because there are some doubts as to whether or not House Republicans even have standing to challenge the law. Standing is the constitutional principle that requires the plaintiff in a constitutional question case to demonstrate that their rights have somehow been infringed upon by the defendant. Here, the question is whether the legislative can have standing regarding a law that is supposed to be enforced by the Executive.

To make things more complicated, even if the Court does find that House Republicans have standing, there is concern as to whether or not one chamber of Congress is able to exercise the authority to enforce this law (thereby having the required standing), without the other. As the Senate is not involved in the suit, this procedural hiccup also has the potential to defeat the challenge before it is actually addressed by the Court.

It is also important to note that Windsor was NOT predicated on a question of whether or not same-sex couples have a constitutional right to marry. Instead, the case is premised on the notion of whether or not Congress is lawfully able to treat same-sex couples differently than different-sex couples in regards to federal laws and programs such as Social Security benefits and income and estate taxes.

That being said, while this case will not directly address the constitutionality of same-sex marriage a ruling in support of the rights of same-sex couples in this case will obviously continue to bridge the gap that same-sex couples face regarding obstacles they face in the recognition of their marriages.

In the other gay marriage case, Hollingsworth v. Perry, the Court addresses California’s Proposition 8 in which California voters passed a constitutional amendment by way of referendum to ban same-sex marriage. The constitutionality of the law being defended not by the state of California, but instead by supporters of Prop 8.

Again, the principle of standing might mean that the Court does not issue a ruling on the legality of the law itself. During oral arguments there was some discussion about whether supporters of the law were able to bring the claim as opposed to the state of California. Essentially, the Court must determine whether proponents of Prop 8 have been harmed.  If the Court says they have not, the case will likely be dismissed with no ruling regarding whether Prop 8 is constitutional.

Another quirk in Hollingsworth is the judicial history of the case. Before coming to the Supreme Court the case was decided by the Ninth Circuit which utilized a very narrow theory to find the strike down the ban as unconstitutional. This narrow theory was the holding of the 1996 case Romer v. Evans which held that an amendment to the Colorado constitution that prohibited same-sex couples from obtaining protection against discrimination violated the US constitution. The Ninth Circuit took the logic behind the Romer ruling and applied it to Prop 8, meaning that the law had to be struck down because it took away the rights of same-sex couples to be married on the basis of discrimination.

However, proponents of Prop 8 argued a broader theory in front of SCOTUS; namely, was that the law restored a traditional notion of marriage that has been in place for centuries, and, in large part, is based on the premise of having children with your significant other which will then be raised in a stable family by their parents. Leaving aside the fact that this line of thought doesn’t even account for current divorce rates in the country (not to mention the plots of countless rom-coms throughout the years), the main flaw in this argument is that this rationale would also prohibit different-sex couples who do not want children or people unable to conceive children from being married as well.

While no one knows how the Court is going to rule when deciding Windsor and Hollingsworth, let alone the rationale behind these rulings, this week has the potential to be one of the biggest weeks in modern SCOTUS history. Now that we’re all up to speed on the questions at hand, we can now return to our state of anticipation.

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Derek Miles

Law student at the University of Louisville and University of Kentucky grad. Prior work experience includes stints with a Congressman from Kentucky, the Kentucky Governor's office, as well as the Institute from Energy and Environmental Research and the German-American Institute in Heidelberg, Germany. It is also important to note that Derek would make a much better Captain James T. Kirk than Chris Miles, and that he used to routinely destroy Chris in FIFA on Xbox.

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