Marriage cases head to U.S. Supreme Court

The U.S. Supreme Court will tackle the issue of same-sex marriage for the first time. The justices will examine two cases, California's Proposition 8 and the federal Defense of Marriage Act. Nina Totenberg, National Public Radio's legal analyst, said the court "could decide all the basic issues surrounding same-sex marriage in one fell swoop."

The legal background is complex, and the court could reach a number of different outcomes. The only certainty is that the court will decide the cases by late June. Hearings on the cases are expected sometime in March.

Let's make a go at the background, as explained by the Washington Post:

The court was almost obliged to review the 1996 Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman and withholds federal benefits from same-sex couples legally married in the states where they live. The law affects things such as health insurance, taxes and medical leave.

[President] Obama announced in 2011 that his administration would no longer defend the law against challenges that it violated the Constitution’s guarantee of equal protection. Four district courts and two courts of appeal have declared the law unconstitutional, including in the New York case, and the high court almost always weighs in on such decisions.

But the court took a bold step in agreeing to review a lower court’s ruling overturning Proposition 8, the 2008 measure in which Californians amended their state constitution to ban same-sex marriage. The referendum came after the state Supreme Court had ruled that there was a right to same-sex marriage and 18,000 couples had taken advantage of the move.

NPR's Totenberg examines the specifics of DOMA:

The test case that the Supreme Court said it will review involves a New York couple, Edith Windsor and Thea Spyer, who had been together for 42 years prior to their marriage in 2007. When Spyer died, however, the federal government, acting under DOMA, required Windsor to pay $363,000 in estate taxes that she would not have owed if her spouse had been of the opposite sex. 

"I brought my case against the government," Windsor said, "because I couldn't believe that our government would charge me $350,000 because I was married to a woman and not a man." 

Windsor won in the lower courts. Indeed, in the past couple of years, 10 courts, with judges appointed by both Democratic and Republican presidents, have ruled that DOMA is unconstitutional. 

Typically, when a court says a federal statute is unconstitutional, the federal government appeals to the Supreme Court to change the outcome. But after initially defending DOMA in the courts, the Obama administration made a highly unusual U-turn, and instead urged the Supreme Court to strike it down. 

At that point, the House Republican leadership hired its own lawyer to defend the law. So when the case is argued, probably in March, it will be that lawyer — former Bush administration Solicitor General Paul Clement — who will be defending DOMA, while the Obama administration will be urging the court to strike down the statute. 

These twists and turns apparently have caused the justices some concern as to whether they have the jurisdiction to decide the case when the federal government is no longer defending the law as constitutional. So the court has ordered the lawyers to also present arguments as to whether the Republican congressional leadership has standing to defend DOMA in place of the Obama administration.

The California issue also hinges on the question of standing, but the possible outcomes are less clear. Here is the background: By a 52 to 48 percent margin, the state's voters in November 2008 amended their constitution to say that marriage was only between a man and a woman. Opponents of the referendum took the matter to federal court. The district court ruled that the Proposition 8 ban violated the Due Process and Equal Protection clauses of the U.S. Constitution. The ruling was challenged, and the Ninth U.S. Circuit Court of Appeals agreed that the lower court's ruling was correctly decided. In the meantime, marriage licenses were granted to 18,000 same-sex couples.

Writing in SCOTUSblog, Kenji Yoshino, the Chief Justice Earl Warren Professor of Constitutional Law at NYU School of Law, raised a number of possible outcomes (as summarized):

The procedural one-state solution. Under the procedural one-state solution, the court would find that the proponents of Proposition 8 lack standing to bring suit.

The substantive one-state solution. The court could adopt a substantive one-state solution, which was the rule adopted by the Ninth Circuit panel. The Ninth Circuit held that under the Equal Protection Clause, a state could not grant an entitlement and then take it away without a legitimate reason. 

A limited one-state solution. A ruling that the proponents lacked standing would reinstate the district court’s opinion, given that it would mean that an improper party had appealed that decision. As the Ninth Circuit indicated during oral argument, the impact of a ruling based on standing would be limited to requiring the clerks of Alameda County and Los Angeles County — the only county clerks named in the complaint — to issue marriage licenses to same-sex couples. Plaintiffs’ attorney David Boies predicted that the Governor Jerry Brown would then require other counties in California to operate in a manner that would ensure statewide consistency. He further averred that if the Governor refused to do so, the plaintiffs would sue to secure such uniformity. The upshot of this solution would be that only California would be affected.

Civil unions in eight states. The court could focus on the lack of justification for giving same-sex couples all the rights and responsibilities of marriage but withholding the word "marriage" from them. … What is important is not that California went all the way to same-sex marriage and then retreated, but rather that California went all the way to "everything but marriage." Once it did so, it reached the point of no return. Currently, seven states besides California would be affected by such a civil union ruling: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island.

Eight states, but … Giving states beyond the nine option to do as they please. Such a ruling could have perverse effects, given that later legislatures that might otherwise have been willing to compromise at "everything but marriage" unions might switch to endorsing only weaker recognition or no recognition at all.

So we have the legal issues. Now let's delve into a few related matters.

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