The arguments have been made, and the cases have been heard. The potentially landmark gay rights cases, Hollingsworth v. Perry and United States v. Windsor, are in the hands of the Court now. While much of the country anxiously awaits the rulings likely to come in late June, many people are clueless as to what these cases actually are, the potential decisions that could be made, and the effect these cases could have on our country. For that reason, this article will lay out the basics of each case along with the possible outcomes in simple, easy-to-understand terms.
[For a more in-depth analysis, visit Lyle Denniston’s posts on SCOTUSblog.com]
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Hollingsworth v. Perry concerns California’s Proposition 8 law. Same-sex marriage was a right granted in California for 5 months until Proposition 8, a ballot initiative, took that right away in November of 2008. Since then, it has been tied up with appeals in lower courts. Most recently, the 9th Circuit Court of Appeals ruled that Proposition 8 was unconstitutional. The proposition’s sponsors, not the California Attorney General, have been defending Prop 8 and have appealed the decision to the Supreme Court.
The first question the Court must decide in Hollingsworth is whether the defendants have legal standing in Court. Since the Attorney General is not defending the case for the state, the situation is somewhat unique to the Court. If they do not recognize standing, the 9th Circuit’s ruling will be the official verdict and same-sex marriage will be legal in California. If the Court does recognize standing, there are 5 possible rulings that could occur:
1) The Court will deem the case “improvidently granted.” This amounts to admitting that the Court made a mistake in selecting this case to hear and takes no action on it. The 9th Circuit’s ruling would stand.
2) The Court can find that California cannot repeal a right by popular vote after they had allowed same-sex marriage previously. Same-sex marriage would be allowed, but the ruling would only affect California.
3) The Court can invoke the precedent from Brown v. Board and rule that the separate institution of civil unions is unequal to marriage. As a result, the 8 states currently allowing civil unions would be required to offer marriage to same-sex couples.
4) The Court could deem that under the 14th Amendment, same-sex couples have the right to “equal protection” under the law. Thus, same-sex marriage would be a Constitutional right and legal throughout the country.
5) The Court could overturn the 9th Circuit’s ruling and find that marriage is not a right that all couples have. Same-sex marriage would remain a state-by-state issue and Proposition 8 would stand.
Basing their guesses off of the Justices’ questions, Court watchers believe that the Court will likely decide one of the first two options.
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United States v. Windsor challenges the constitutionality of the Defense of Marriage Act (DOMA). The Act, signed by President Clinton, states that the federal government only recognizes marriage as a union between a man and a woman. Consequentially, same-sex couples legally married in states cannot file joint tax returns, receive survivor’s benefits through Social Security, or take unpaid leave to care for a sick or injured spouse [1]. Edith Windsor, who after 40 years of engagement and 2 years of marriage lost her spouse to multiple sclerosis (MS), brought the case to the Court. After her spouse’s death, Edith was required to pay $363,000 in taxes. If the federal government recognized same-sex marriages, however, Edith would have owed nothing at all [2].
The outcomes in the Windsor case are somewhat similar. Again the Court must find that the defendant has standing. Since President Obama’s administration decided to no longer defend the law in Court, the House Republican leaders have backed the defense of the case. If the Court finds that both parties in the actual case agree and do not have a dispute, they cannot rule on the law’s constitutionality. If the Court finds that the House Republicans have standing, they will rule one of 4 ways:
1) DOMA is unconstitutional because it infringes on a state’s right to regulate marriage. The federal government would recognize same-sex marriages.
2) DOMA does not violate a state’s right to regulate marriage. The law is constitutional and Ms. Windsor would be required to pay the taxes.
3) DOMA is unconstitutional because it violates the 14th Amendment’s equal protection clause. This ruling would likely make any state law against same-sex marriage unconstitutional. Thereby, same-sex marriage would be legal in all 50 states.
4) DOMA is constitutional. It does not violate states’ rights. Same-sex marriage is not a right that is afforded equal protection under the law.
The general consensus is that the Court will decide option 1.
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Any way Hollingsworth and Windsor are decided, they are landmark cases for the cause of gay rights. As recently as a decade ago, cases like this were not imaginable. The ruling in June could create a tsunami of change across the United States, and if it does, we will know that the wave began on a Tuesday in March.
[1] http://www.hrc.org/laws-and-legislation/federal-legislation/respect-for-marriage-act
[2] http://www.aclu.org/lgbt-rights/windsor-v-united-states-thea-edie-doma
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