The Prop 8 and DOMA Cases Before the Supreme Court

WASHINGTON, DC - NOVEMBER 30:  Same-sex marriage proponent Kat McGuckin of Oaklyn, New Jersey, holds a gay marriage pride fla
WASHINGTON, DC - NOVEMBER 30: Same-sex marriage proponent Kat McGuckin of Oaklyn, New Jersey, holds a gay marriage pride flag while standing in front of the Supreme Court November 30, 2012 in Washington, DC. With the Supreme Court building draped in a photo-realistic sheet during a repair and preservation project, the justices met today to consider hearing several cases dealing with the rights of gay couples who are married, want to get married or are in domestic partnerships. (Photo by Chip Somodevilla/Getty Images)

Next month, the United States Supreme Court will hear oral arguments in two cases concerning same-sex marriage. What are the legal issues?

United States v. Windsor (regarding DOMA)

In United States v. Windsor, the Supreme Court will determine the constitutionality of the Defense of Marriage Act (DOMA) signed into law in 1996 by President Clinton. Section 3 of DOMA provides that the word "marriage," as used in any federal law or regulation, means only a union of a man and a woman. This includes laws that govern veterans' benefits, tax adjustments, Social Security, and many other benefits.

This particular case arose from a federal estate tax dispute. Generally speaking, a person's estate may pass to the surviving spouse estate-tax-free, but DOMA limits this federal benefit only to heterosexual marriages. Therefore, not recognizing same-sex marriage pursuant to DOMA, the Internal Revenue Service (IRS) demanded that New Yorker Edith Windsor pay an estate tax of $363,053 upon her same-sex spouse's death, even though New York recognized the marriage as valid.

Windsor brought suit as a surviving spouse in federal district court for the refund of the estate tax. She argued that the IRS's different treatment of married same- and opposite-sex couples under Section 3 of DOMA violates the equal protection guarantees of the Fifth Amendment.

In a procedural twist, the Justice Department (DOJ) announced that it would not defend DOMA against Windsor's claims due to the Obama administration's belief that DOMA is unconstitutional. Although government lawyers remained involved in the case, the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) provided the defense of DOMA in Windsor's case.

The district court found in Windsor's favor, ordering the tax refund. The court reasoned that DOMA violated Windsor's rights under the equal protection guarantees of the Fifth Amendment under a rational basis review, the lowest available level of judicial scrutiny for state laws.

Upon appeal, the Second Circuit Court of Appeals took issue with the lower court's rational basis review, holding that classifications based on sexual orientation -- like those based on sex -- are quasi-suspect (classification based race or national origin is fully suspect) and should be scrutinized carefully. Applying this standard to DOMA, the appellate court affirmed the lower court, finding for Windsor.

There are several questions on appeal to the United States Supreme Court resulting from the case. The first is whether there is a controversy as required by the Constitution for a court to hear the case. Given that the Executive is not defending the act and in fact is supportive of its being struck down, the parties are in agreement. Yet the Constitution requires there to be a controversy for the Supreme Court to have the authority to make a decision. If the parties agree, the Supreme Court arguably has no authority to rule on the matter.

The second question is whether BLAG has legal standing to defend DOMA. The Supreme Court requires that the parties involved in a case have a sufficient connection to and harm from the challenged law or action -- essentially a personal stake in the outcome -- in order to participate in the case. BLAG's stated connection is that it represents Congress, which passed DOMA. Interestingly, it is the Executive branch that traditionally enforces legislation instead of the Legislative branch, also raising a balance-of-power question.

Finally, the Supreme Court faces the very issue that prompted this case in the first place: whether Section 3 of the Defense of Marriage Act (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.

Hollingsworth v. Perry
(regarding Prop 8)

In 2008, the California Supreme Court overturned the state's ban on same-sex marriage because it violated the guarantee of equal protection in the California constitution. Later that same year, California voters approved a ballot measure -- Proposition 8 -- amending the state constitution to specifically disallow same-sex marriages.

A federal district court, having jurisdiction to hear federal constitutional issues, found Proposition 8 to violate the United States Constitution because California had effectively given same-sex couples the right to marry and then taken it away again. The court determined that taking away a right only from a minority group -- which the state had no legitimate reason for doing -- violated the equal protection guarantee in the United States Constitution. The Ninth Circuit Court of Appeals agreed, and the proponents of Proposition 8 sought review by the Supreme Court.

As in Windsor, standing becomes an issue. The United States Supreme Court requires that the parties involved in a federal court case have a sufficient connection to and harm from the challenged law or action -- essentially a personal stake in the outcome -- in order to have standing before the court.

Typically, state officials, on behalf of the state, have standing to argue that a particular state law does not violate the United States Constitution. But in this case, state officials accepted the ruling of the federal district court and it is the private backers of Proposition 8 who have been appealing the district court's decision.

During its consideration of the district court's decision in this case, the federal Ninth Circuit court asked the California state Supreme Court whether the private proponents had authority under state law to be party to the litigation. The California Supreme Court answered that they did have such authority, and the Ninth Circuit determined that this was sufficient to establish standing under federal law. Whether the federal Supreme Court will uphold this ruling remains to be seen. In an earlier case, Arizonans for Official English v. Arizona, the United States Supreme Court expressed doubts about whether sponsors of a ballot initiative in Arizona had standing.

A ruling from the United States Supreme Court that the proponents of Proposition 8 do not have standing would prevent the proponents from appealing the lower court's decision. The result would be a reinstatement of the federal district court's opinion in favor of same-sex marriage in the originally named defendant counties of Alameda and Los Angeles Counties.

Alternatively, the Supreme Court could follow the Ninth Circuit's lead, find standing, and make a substantive decision regarding whether a state violates the Equal Protection Clause when it grants an entitlement and then removes it without a legitimate reason. The Supreme Court may then uphold or reverse the Ninth Circuit's determination that the state had no "rational justification" for denying same-sex couples the right to marry.

Oral arguments in Windsor are scheduled for March 27 and in Perry for March 26 at the Supreme Court. The Court's decisions are not expected for several additional weeks.

*The author would like to thank Susan David DeMaine for her invaluable assistance with this post.