The Nation’s Highest Court Speaks on the Issue of Marriage Equality

Article written by Michele M. Jochner and Shannon R. Burke

Waiting until the final day of its 2012-2013 Term, the United States Supreme Court issued two long-awaited decisions regarding same-sex marriage.  Both cases, decided by close 5-4 margins, were viewed as victories for the proponents of marriage equality.

In United States v. Windsor, the Court ruled that by seeking to injure same-sex couples  who state laws sought to protect, section 3 of the federal Defense of Marriage Act (“DOMA”) – which defined “marriage” and “spouse” to exclude same-sex partners for certain federal benefits – violates basic due process and equal protection principles. The ruling means that in those states which recognize same-sex marriage, the federal government will be required to respect those marriages and accord them benefits and obligations which are equal to those in opposite-sex marriages.

Minutes later, in Hollingsworth v. Perry, the Court dismissed the appeal brought by the sponsors of California’s Proposition 8 – the ballot measure which defined marriage as only between a man and a woman – on the basis that the parties seeking relief lacked standing.  By throwing out the appeal, the Court effectively permitted same-sex marriages to resume in that State, as it allowed a lower court ruling which invalidated that measure to stand.

The Windsor opinion, authored by Justice Anthony Kennedy, traced the evolution of the slow but steady acceptance – state-by-state – of same-sex marriage.  Although the traditional notion of “marriage” was confined to a union between a man and woman, recent years have given birth to “a new perspective, a new insight” within which a growing number of States have recognized the validity of same-sex marriages wherein such couples may “live with pride in themselves and their union and in a status of equality with all other married persons.”

The Court reaffirmed that the definition and regulation of marriage rests in most instances within the province of the individual States, and that the federal government generally defers to state decisions in the realm of domestic relations. In recognizing the validity of same-sex marriages, the Court held that states have provided “protection” and “dignity” to the bond of same-sex unions, and that the provisions of section 3 of DOMA were enacted with the intention of “injur[ing] the very class that [the States] seek[] to protect.” The Court concluded that there was no doubt that the purpose of DOMA was to treat same-sex unions as “second-class marriages” by “writ[ing] inequality into the entire United States Code” affecting more than 1,000 statutes and federal regulations ranging from social security and taxes to housing and veteran’s benefits.

Because of the unquestioned purpose and effect of DOMA to “demean those persons who are in a lawful same-sex marriage,” the Court invalidated section 3 as an unconstitutional deprivation of liberty of the person protected by the Due Process Clause of the Fifth Amendment of the Constitution, as well as the prohibition against denying to any person the equal protection of the laws guaranteed therein.

This holding was expressly limited, however, to “lawful” same-sex marriages, meaning that those couples who were married in and live in states that allow same-sex marriage are now eligible for federal benefits.  Notably, although the Court struck down section 3 of DOMA,  section 2 of DOMA, which allows States to refuse to recognize same-sex marriages performed under the laws of other States, remains intact.  Thus, individual States can continue to define marriage as they see fit and need not recognize same-sex marriages entered into in other states or countries.

As to the Hollingsworth case, although the Court did not address its merits, the practical effect of its dismissal is that the declaration by the United States District Court that Proposition 8 is unconstitutional now stands as the law of the case. Accordingly, same-sex couples can again seek marriage licenses in California.

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