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Topics In the News
U.S. Supreme Court to Review DOMA, Proposition 8 Cases
Posted by: Claude J. Summers on 12/07/12
Last updated on: 12/07/12
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Edith Windsor.

On December 7, 2012 the Supreme Court of the United States announced that it will consider cases challenging the Defense of Marriage Act (DOMA) and California's Proposition 8, which banned same-sex marriage in the Golden State. The court is expected to hear oral arguments on the cases in March and issue decisions in June 2013.

As many observers predicted, the Supreme Court chose to review Windsor v. U.S.A., the case brought by 83-year-old Edith Windsor, who was required to pay $350,000 in estate taxes after the death of her wife, Thea Spyer, that would not have been owed had she been married to a man.

On October 18, 2012, the United States Court of Appeals for the Second Circuit, in a 2-1 decision, ruled in Windsor's favor. Applying "heightened" or "intermediate" scrutiny, the Appeals Court found that DOMA violates the Fifth Amendment's equal protection guarantee.

If the Supreme Court upholds the appropriateness of applying heightened scrutiny to legislation that discriminates against gay people, then a decision in Windsor could have implications far beyond DOMA. As Ian Millhiser at ThinkProgress wrote last month, if the Second Circuit's "reasoning is adopted by the Supreme Court, it will be a sweeping victory for gay rights, likely causing state discrimination on the basis of sexual orientation to be virtually eliminated."

However, in granting review to the case, the Court also asked the parties to brief and argue the question of whether "the Executive Branch's agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the House of Representatives has Article III standing in this case."

Raising these questions of jurisdiction and standing may provide the Court a way of finding DOMA unconstitutional without having to make a far-reaching ruling on the merits.

The Court's decision to review the Proposition 8 case, now known as Hollingsworth v. Perry, was something of a surprise. Many observers thought that the Court would either deny review to it or hold it over for future consideration.

The Court indicated that among the issues it would consider in the Prop 8 case is the question of standing, i.e., whether the proponents of Proposition even had the right to defend the Proposition after the Governor and Attorney General declined to do so. Thus, it may be that the Supreme Court may actually not rule on the merits of the case itself.

However, if the Court does consider the merits of Proposition 8, it may go beyond the narrow decision handed down by the Ninth Circuit Court of Appeals and reach a decision about the fundamental right of marriage for same-sex couples.

It is difficult to exaggerate the significance of the cases before the Supreme Court. Tom Goldstein of SCOTUSblog recently described the marriage cases as the "most significant cases these nine Justices have ever considered, and probably that they will ever decide."

"The cases," Goldstein wrote, "present a profound test of the Justices' judgment. The plaintiffs' claims are rooted in the fact that these laws rest on an irrational and invidious hatred, enshrined in law. On the other hand, that describes some moral judgments. The Constitution does not forbid every inequality, and the people must correct some injustices (even some grave ones) themselves, legislatively."

"The striking feature of these cases--not present in any others I have ever seen--is that that they would have been decided by the Justices' predecessors one way and would be decided by the Justices' successors another way."

After noting that the claims of same-sex marriage advocates would have been hopeless in the Supreme Court as recently as five years ago, Goldstein concludes: "But the arc of history tilts towards equality and justice, and our society is rapidly but unevenly coming to the judgment that same-sex marriage is just and right. The claims presented by this case would just as inevitably prevail (probably by a wide margin) in the Supreme Court twenty years from now. By then, it will be broadly (if not uniformly) accepted that discrimination against homosexuals related to marriage is invidious and irrational. Our attitudes are shifting that fast."

In the video below, from a news conference held after the Court of Appeals for the Second Circuit declared DOMA unconstitutional in Windsor v. U.S.A., Edith Windsor declares that she is thrilled by the decision. She adds that she found it "so offensive that this woman that I lived with and adored, and had loved me, that they treated her as if she was a stranger in my life."

In the clip below, Matt Baume of the American Foundation for Equal Rights, which sponsors the Prop 8 challenge, remarks on the significance of the announcement that the Supreme Court will review the Prop 8 case.

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