Last December, the
Supreme Court decided it would include two cases on the 2013 docket that would
have major implications on the status of same-sex marriage in the United
States. The cases chosen—United States v. Windsor and Hollingsworth v. Perry—challenge
the 1996 Defense of Marriage Act (DOMA) and California’s Proposition 8,
respectively.
DOMA is a federal
law passed in 1996 which defines marriage as between a man and a woman.
Proposition 8 is a California law which precludes same-sex marriages.
According to the Petition
for Writ of Certiorari, the formal request calling for a Supreme Court review,
the Hollingsworth v. Perry case poses the question of “whether the Equal
Protection Clause of the 14th Amendment prohibits the State of California from
defining marriage as the union of a man and a woman.”
Similarly, the
petition in United States v. Windsor asks “whether section 3 of DOMA violates
the Fifth Amendment’s guarantee of equal protection of the laws as applied to
persons of the same sex who are legally married under the laws of their state.”
The hearings began
on March 26 for Hollingsworth v. Perry and on March 27 for the United States v.
Windsor case.
Fifty-eight
percent of Americans think it should be legal for gay and lesbian couples to
get married, according to a Washington Post/ABC News poll conducted this month.
Among younger Americans—those ages 18-29—81 percent say they support gay
marriage, according to the poll.
Reuters Ltd., a
British news agency, reported that, “Chief Justice John Roberts alluded to the
evolving positions on the issue during oral arguments on Wednesday in one of
the cases, citing political support for same-sex marriage as evidence that gays
and lesbians were not a vulnerable group requiring special protections.”
“As far as I
can tell, political figures are falling over themselves to endorse your side of
the case,” Roberts said to Roberta Kaplan, the lawyer representing Edith
Windsor, a lesbian widow seeking federal benefits in one of the cases.
Charles Cooper
presented the argument on behalf of California. “The concern is that redefining
marriage as a genderless institution will sever its abiding connection to its
historic traditional procreative purposes, and it will refocus—refocus the
purpose of marriage and the definition of marriage away from the raising of
children and to the emotional needs and desires of adults,” Cooper said.
Justice Ruth Bader
Ginsburg pointed out that “somebody who is locked up in prison and who is not
going to get out has a right to marry, has a fundamental right to marry, no
possibility of procreation (so why not gay couples)?”
Justice Ginsburg
also stated in the United States v. Windsor hearing that DOMA, by denying
same-sex couples federal benefits, reduces same-sex marriage to a “sort of skim
milk marriage.”
Although the justices
appeared likely to strike down the same-sex marriage bans, Reuters reported
that “based on the arguments, however, a partial victory for gay rights
activists seems more likely than the sweeping declaration of same-sex marriage
rights they had hoped for.”
The report notes
that while justices have expressed that they are not interested in impeding the
states from embracing same-sex marriage, they have also made it clear that they
will not be paving the way to marriage equality.
If the justices
decide to strike down DOMA, legally married same-sex couples would become
eligible for federal benefits that were previously denied. This denial of
benefits is what required Edith Windsor to pay $363,000 in
federal estate taxes, which would not have been imposed if Windsor’s marriage
had been federally recognized.
According
to Reuters, “Justices gave a strong indication they might resolve the
Proposition 8 case on procedural grounds.” If this happens, same-sex marriages
would likely resume in California. This ruling’s procedural grounds would have
no effect on the marriage laws of any other state.
While none of the justices definitively
said how they planned to rule, Politico reported that if the court issues an
opinion in the case, it likely would not come before June.
