Same-Sex Marriage Goes to the Supreme Court

Tuesday, March 26, 2013

Today the Supreme Court hears the first of two cases on the constitutionality of gay marriage.

The first case is Hollingsworth v. Perry, a challenge to California’s Proposition 8, the voter-approved, state constitutional amendment that banned same-sex marriage back in 2008. On Wednesday, the nation's highest court will hear United States v. Windsor, the case that will determine the constitutionality of the Defense of Marriage Act (also known as DOMA), signed into law by President Clinton in 1996.

Kenji Yoshino, professor of constitutional law at New York University School of Law, explains that there are a few potential outcomes if the Supreme Court decides to strike down Proposition 8. The Court could decide that all state bans on same-sex marriage are unconstitutional but, Yoshino says, that seems unlikely.

"I think that the Supreme Court will rule for the plaintiffs, but on…intermediate grounds," Yoshino says. In other words, Yoshino believes that the Court is more likely to rule one of three ways:

  • That the defendants do not have standing to bring the case, which would kick the case back to the district level and allow the district ruling (in which Judge Vaughn Walker ruled for the California plaintiffs) to stand.

  • That it was unconstitutional for California to grant a right (the state Supreme Court approved gay marriage in May 2008), then take it away (via the Proposition 8).

  • That the nine states that allow same-sex domestic partnerships or civil unions must allow gay marriage (in addition the the nine states that already do allow gay marriage.

Yoshino predicts the Supreme Court will strike down the Defense of Marriage Act. "The reason that [DOMA] is more vulnerable than Proposition 8," Yoshino says, "is because marriage has traditionally been an issue of state law, rather than federal law. So the 1996 Defense of Marriage Act is really a usurpation of the traditional relationship between the federal and state governments on the side of the federal government."

Yoshino points out that the Federal government under President Obama has taken a complicated approach to the Defense of Marriage Act: "They are enforcing [DOMA] but they are refusing to defend it. And I want to make clear, that this is very rare but it is not unprecedented."

Because the federal government has refused to defend it, House Republicans led by John Boehner have stepped in to do just that. "Obama is not saying that the Supreme Court shouldn’t decide this case, he’s just saying that he wouldn't defend it. And in fact Chief Roberts himself declined to defend in an affirmative action case and so this is something that occurs on both sides of the aisle."

Listen to audio from today's same-sex marriage hearings at the Supreme Court

Our Washington correspondent, Todd Zwillich, is filling in as host all this week. Follow Todd on Twitter for the latest from Capitol Hill.


Kenji Yoshino

Hosted by:

Todd Zwillich

Produced by:

Jillian Weinberger

Comments [6]

avid from Kentucky

Here's the problem as I see it: We have federal laws that forbid discrimination on any basis in our hiring practices, and yet the federal Social security law grants benefits of Medicare and social security to the spouses of those who qualify for SS benefits:
So right now our government basically says, "Oh, so sorry, if you didn't marry a person of the opposite sex, you get nothing." It's financially coercive for recipients of this benefit to be heterosexual, and it denies homosexual individuals their rights under our constitution.
This sexual discrimination that is written into our federal law needs to be corrected if we truly believe in that freedom that we keep claiming we have.
And the viable way to correct that is to legalize gay marriage.

Mar. 27 2013 06:53 AM
Claire from Vancouver, WA

When I got my text notification this morning asking "What does marriage mean to you ,"it really made me start thinking about it. For me, being able to marry my husband meant we were taking our relationship to the next level and committing ourselves to a life together. It was affirming publicly how much we cared for one another. Neither of us is particularly religious. I identify as agnostic and my husband describes himself as an agnostic spiritualist.

I feel that if our marriage poses no threat in its non-religious nature that the argument that same-sex marriage is a threat to the religious institution of marriage is pretty much null. At this point, opponents are trying to legislate personal morality. My husband and I also both engaged in premarital sex, so there goes the moral argument too. People are going to do whatever it is they're going to do in the bedroom and it's no one else's business. Alternatively oriented people deserve the same rights that I have. They deserve the right to have their commitment to another person legally recognized and should be aable to enjoy the same benefits as heterosexual marriages. They deserve the same right to figure out how to file a joint tax form and shouldn't have to enter into legal relationships with someone of the opposite sex in order to receive healthcare benefits as a friend of mine did.

Mar. 26 2013 04:41 PM
Larry Fisher from Brooklyn, N.Y.

Sometimes, progress feels like it takes forever...

Eventually, Gay people will be able to get married in every State and have equality. This process may take another another ten to twenty years of going through the courts, but it will happen.

I can't imagine what would happen if people's rights which they've had or begun to have, get taken away.

Mar. 26 2013 11:36 AM

No, that's not really the question at bottom, Ed, because same-sex activity and opposite-sex activity are not the question. People are free to find things personally not acceptable, but that doesn't mean that those people lack rights. Lawrence v. Texas found years ago that the right to privacy extends to same-sex activity, regardless of whether people approve or not. So this is about marriage - not any bad activity, as marriage is a very great action.

Mar. 26 2013 10:49 AM

I've been in a wonderful relationship with my loving partner for 10 years. He is from outside the US. Just because we are a gay couple, he has no rights to stay in the US. This is blatantly unfair. Simply because we can't reproduce? That's absurd. Discrimination is discrimination.

My straight supportive brother met his his foreign wife 3 months after I met my life partner. They are married and she enjoys the benefits that being a permanent resident provides. Meanwhile, my partner and I are unable to live in the same city, and unsure what would happen to us should we become hospitalized. Time for a change.

Mar. 26 2013 08:46 AM
Ed from Larchmont

I guess at bottom the question is whether this society regards same-sex activity as acceptable or not. If they don't, none of it follows. It has accepted many other bad activities, hard to say no to another one.

Mar. 26 2013 08:10 AM

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