Same-sex marriage

Hollingsworth v. Perry

In November 2008, 52.3 percent of California voters approved Proposition 8, which added language to the California Constitution that defined marriage as a union between a man and a woman. In May 2009, a California District Court ruled that Proposition 8 violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment and temporarily prohibited its enforcement, and the Ninth Circuit agreed, affirming the District Court’s ruling. The United States Supreme Court will now consider whether a state can define marriage solely as the union of a man and a woman, in addition to considering whether the proponents of Proposition 8 have standing to bring suit in federal court. The Court’s ruling will implicate the rights of gay men and lesbians, the role of the government in structuring family and society, and the relationship between the institution of marriage and religion and morality.

Questions as Framed for the Court by the Parties

1. Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the state of California from defining marriage as the union of a man and a woman. 

2. Whether petitioners have standing under Article III, §2 of the Constitution in this case.

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Issues

1. Does a state violate the Equal Protection Clause of the Fourteenth Amendment by defining marriage solely as the union of a man and a woman?

2. Do the official proponents of a state ballot initiative have standing to appeal a judgment invalidating that initiative?

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Acknowledgments

The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.

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Obergefell v. Hodges (14-556); Tanco v. Haslam (14-562); DeBoer v. Snyder (14-571); Bourke v. Beshear (14-574)

Issues

Does the Fourteenth Amendment require states to license or recognize same-sex marriages performed out-of-state?

The Supreme Court will rule on whether the Fourteenth Amendment requires states to recognize same-sex marriages lawfully performed out-of-state and to grant same-sex marriage licenses. Regarding the first issue, Petitioner James Obergefell argues that the Court’s 2013 ruling in United States v. Windsor invalidates Ohio’s marriage-recognition laws, which Obergefell claims disadvantage and overburden same-sex couples and their families. Obergefell’s arguments regarding this issue are generally representative of those brought forth by the Petitioners in consolidated cases Tanco v. Haslam and Bourge v. Beshear. However, Respondent Richard Hodges—whose position generally aligns with the various Respondents in the consolidated cases Tanco v. Haslam and Bourge v. Beshear—counters that the Windsor Court did not interpret the Fourteenth Amendment to contemplate a “freestanding marriage-recognition right” and argues that a recognition right would undermine the democratic processes that led to the current legislation. On the second issue, Petitioner Deboer—from the consolidated case Deboer v. Snyder—argues that Due Process and the Equal Protection Clauses of the Constitution require that states license same-sex marriage, and compels the Court to rule on this issue. The Respondent in Deboer, Governor Snyder, argues that nothing in the Fourteenth Amendment’s history or plain text meaning requires states to license same-sex marriage, nor does it compel the Court to rule on the issue. The Court’s ruling in these cases may affect the legal rights of children of same-sex couples, the rights of people who identify as gay, and the states’ sovereign right to enact legislation that defines the status of same-sex marriages within their borders.

Questions as Framed for the Court by the Parties

  1. Does the Fourteenth Amendment require a State to license a marriage between two people of the same sex?
  2. Does the Fourteenth Amendment require a State to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

For twenty-two years, Petitioner James Obergefell and his late partner, John Arthur, lived together in a committed relationship in Cincinnati, Ohio until Arthur’s passing on October 22, 2013. See Obergefell v. Kasich, No. 1:13-cv-501, 2013 WL 3814262, at *3 (S.D. Ohio Jul. 22, 2013).

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United States v. Windsor

Edith Windsor and Thea Spyer married in Toronto in 2007 where same-sex marriages were legal. At the time of Spyer’s death, the state of New York recognized the couple’s marriage. However, the IRS denied Windsor use of a spousal estate tax exception on the ground that, under the Defense of Marriage Act (“DOMA”), the federal government did not recognize same-sex marriages for the purpose of federal benefits.
 The Supreme Court is now being asked to decide DOMA’s Constitutionality. The Obama Administration is not defending DOMA, so a Bipartisan Legal Advisory Group (“BLAG”) from the House of Representatives is doing so, arguing that DOMA is rationally related to the legitimate government objective of providing a uniform definition of marriage for federal benefits purposes. The Obama administration counters that the use of sexual orientation to decide who gets benefits is a suspect classification that deserves higher scrutiny. Under that level of higher scrutiny, the Obama administration argues that DOMA is impermissible.
 This case can affect what role the federal government can play in defining marriage and who in the federal government can defend the government’s laws. Not only could this case provide large tax savings to Ms. Windsor herself, but it can also make federal benefits available to other same-sex couples who are legally married under the laws of their state.

Questions as Framed for the Court by the Parties

Section 3 of DOMA defines the term “marriage” for all purposes under federal law, including the provision of federal benefits, as “only a legal union between one man and one woman as husband and wife.” 1 U.S.C. 7. It similarly defines the term “spouse” as “a person of the opposite sex who is a husband or a wife.” Ibid. The question presented is:

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. 

In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: 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 BLAG has Article III standing in this case. 

Issue

The substantive issue is whether Section 3 of the Defense of Marriage Act violates the right to equal protection of same-sex couples who are legally married under state law.

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Acknowledgments

The authors would like to thank Professor Michael C. Dorf for his insights into this case and former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.

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