As previously covered in our article Same-Sex Marriage Law Developments after Election 2012, this has been a big year for same-sex marriage. Three states voted to approve same-sex marriage in the 2012 election, and one state struck down a proposed amendment to the state constitution that would limit marriage to one man and one woman (although a statute remains on the books in that state which prohibits same-sex marriage).
The U.S. Supreme Court has now entered into fray. On December 7, 2012, the high court granted two petitions of certiorari on this issue: 1) Hollingsworth v. Perry, the California Prop. 8 case (Case No. 12-144); and 2) US v. Windsor, the Defense of Marriage Act (DOMA) case out of the Second circuit (Case No. 12-307).
Hollingsworth v. Perry
The Court granted review on the question presented by the petition: 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.
Proposition 8 was passed in 2008 in response to a CA Supreme Court ruling that made same sex marriage legal. Proposition 8 amended the state constitution to eliminate the right of same-sex couples to marry. The Ninth Circuit Court of Appeal ultimately ruled that said amendment to the constitution violated the 14th amendment, based on the facts before it in this case.
Justice Reinhardt wrote:
"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for 'laws of this sort.' Romer v. Evans, 517 U.S. 620, 633 (1996)."
Importantly, the opinion decided a narrower issue than the broad question of whether under the Constitution same-sex couples may ever be denied the right to marry:
"We need not and do not answer the broader question in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of 'marriage,' and Proposition 8's only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment's constitutionality on narrow grounds."
Importantly, the U.S. Supreme Court is also asking the parties to brief on the following issue: Whether petitioners have Article III standing in this case. The Ninth Circuit ruled that backers of the initiative did have standing, but this provides an interesting procedural wrinkle, giving the U.S. Supreme Court an out to avoid reaching the case on the merits.
Thus, the Court could rule on the extremely narrow procedural ground regarding standing, or could rule on the narrow ground regarding the withdrawal of rights to same-sex marriage as was the case with Prop. 8, and not have to decide the much broader issue of whether same-sex could ever be denied the right to marry.
The stay entered when the case was appealed to the U.S. Supreme Court remains in effect. Had the high court denied the petition, leaving Ninth Circuit opinion in effect, presumably the stay would have been lifted and California would be allowed to issue marriage licenses to same-sex couples.
US v. Windsor
The Court granted review on the question presented by the petition: 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.
We previously discussed this case in great detail. The Second Circuit Court of Appeals determined that the Defense of Marriage Act, a federal law, was subject to heightened scrutiny, and under that test, Section 3 of the law that defines marriage as between only a man and a woman, violates equal protection and was therefore struck down as unconstitutional.
The case was significant in many respects, not least of which was the application of heightened scrutiny to same-sex marriage which was unprecedented.
The Second Circuit found that all four factors were met to justify heightened scrutiny: 1) homosexuals as a group have historically endured persecution and discrimination; 2) homosexuality has no relation to aptitude or ability to contribute to society; 3) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and 4) the class remains a politically weakened minority.
This analysis led the Second Circuit to conclude that intermediate scrutiny was appropriate and classified the group as "quasi-suspect", but declined to label the group suspect, stating "[w]hile homosexuals have been the target of significant and long-standing discrimination in public and private spheres, this mistreatment is not sufficient to require our most exacting scrutiny."
The Second Circuit rejected arguments set forth by backers of DOMA and ruled that DOMA's classification of same-sex spouses was not substantially related to an important government interest, and the court therefore held that Section 3 of DOMA violates equal protection and is therefore unconstitutional.
The Second Circuit also found that the case Baker v. Nelson was not controlling to the outcome. In Baker v. Nelson, an appeal from a Minnesota Supreme Court decision finding no right to same sex marriage, the U.S. Supreme Court issued a summary dismissal "for want of a substantial federal question." Finding this statement to be not controlling, the court said: "The question whether the federal government may constitutionally define marriage as it does in Section 3 of DOMA is sufficiently distinct from the question in Baker: whether same-sex marriage may be constitutionally restricted by the states."
The Baker case may prove to be a hurdle for proponents of gay marriage who argue that states cannot deny the right to same-sex marriage (as opposed to the narrower issue in Hollingsworth of withdrawing a right or the issue in this case, of the ability of the federal government to deny equal rights to persons of the same sex who are legally married under the laws of their State).
However, the Second Circuit does leave a nugget for those who argue that 40 years have passed since Baker v. Nelson and times have changed. It found that manifold changes to the Supreme Court's equal protection jurisprudence "constitute another reason why Baker does not foreclose our disposition of this case."
The Windsor case in particular involves a sympathetic party in Edith Windsor, who was with her partner, Thea Spyer for over 40 years, was married in Canada, and her marriage was recognized by the State of New York. Upon the death of Ms. Spyer, Ms. Windsor was denied the benefit of a spousal deduction for federal estate taxes because section 3 of DOMA bars recognition by the IRS of Ms. Windsor as a "spouse" or to recognize that the couple was married. Ms. Windsor therefore paid $363,053 in federal taxes because the federal government did not recognize her as married.
Like the Hollingsworth case, the U.S. Supreme Court has asked the parties to brief on the issue of standing -- whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing. The group took over defense of DOMA, because the Department of Justice declined to continue to defend it.
Interestingly, the U.S. Supreme Court did not ask the parties to brief the issue of Ms. Windsor's standing. The Second Circuit spent time discussing her standing, and pointed out that New York did not recognize same-sex marriage until 2011 and Ms. Spyer died in 2009, but the Second circuit predicted that New York would nevertheless have recognized Windsor and Thea Clara Spyer as married at the time of Spyer's death in 2009, so that Windsor was a surviving spouse under New York law.
The third issue that the U.S. Supreme Court asked the parties to brief is whether the Executive Branch's agreement with the court below that DOMA is unconstitutional deprives the U.S. Supreme Court of jurisdiction.
This leaves two narrow procedural grounds as outs for the Court, such that it could avoid deciding the case on the merits.
Dates to Watch
SCOTUSblog is predicting that oral arguments in these cases will be heard some time between March 18-27, 2013 and a decision should be forthcoming by June 27, 2013.
Anne O'Donnell is a recovering litigator who is now currently a Senior Writer for legal professional content at Findlaw.com. She practiced for 10 years in civil litigation in San Francisco.