Supreme Court

This year, the Supreme Court of the United States will review two marriage cases. One case, Windsor v. United States, challenges the so-called Defense of Marriage Act, which prohibits the federal government from respecting legal marriages between same-sex couples and providing the federal protections and responsibilities triggered by marriage and afforded all other married couples. The other case, Hollingsworth v. Perry, challenges California's Proposition 8, a constitutional amendment pushed through by anti-gay activists in 2008 that stripped away from same-sex couples the freedom to marry in California.

The Supreme Court heard oral arguments on March 26 (Perry) and March 27 (Windsor). The Court is likely to announce its rulings in June 2013.

Challenging the Defense of Marriage Act

DOMA's Section 3 restricts marriage to different-sex couples, thus prohibiting the federal government from providing equal treatment to the legal marriages of same-sex couples. DOMA denies those (and only those) couples the 1,138+ protections and responsibilities that marriage triggers at the federal level including Social Security survivor benefits, immigration rights, family and medical leave, and the ability to pool resources as a family without unfair taxation.

Windsor v. United States directly challenges Section 3 of DOMA. The case dates back to November 2010, when the American Civil Liberties Union filed suit on behalf of Edie Windsor, an 83-year-old widowed lesbian from New York who sued the government for the $363,000 in estate taxes that because of DOMA she was forced to pay following the death of her wife Thea Spyer. Windsor and Spyer were together for more than 40 years and wed in Canada in 2007.

On June 6, 2012, U.S. District Court Judge Barbara Jones ruled in favor of Windsor, declaring this "gay exception" to the ordinary federal respect given to lawful marriages unconstitutional. Numerous other federal courts likewise found DOMA unconstitutional in similar cases. On October 18, 2012, the U.S. Court of Appeals for the Second Circuit upheld the Windsor ruling, and on Friday, December 7, the Supreme Court announced that it would review Windsor v. United States.

The Department of Justice also agreed that DOMA's discrimination is unconstitutional, and has now sided with Windsor. The Bipartisan Legal Advisory Group of the House of Representatives is defending DOMA before the Court, and filed its opening brief on January 22. The Department of Justice and Edie Windsor's lawyers filed their briefs in February.

Click to listen to the audio or read the transcript of oral arguments in the Windsor case.

Challenging Proposition 8

The other case, Hollingsworth v. Perry (formerly Perry v. Brown) challenges the constitutionality of Proposition 8, the November 4, 2008 ballot measure amending the state constitution so as to strip away the freedom to marry from California's same-sex couples.

On August 4, 2010, Chief Judge Vaughn Walker of the Northern District of California federal court found Prop 8 to be unconstitutional, writing, "California has no interest in discriminating against gay men and lesbians." Although the Governor and Attorney General of California agreed with the ruling, the proponents of Prop 8 appealed the decision to the U.S. Court of Appeals for the Ninth Circuit.

On February 7, 2012, the Court of Appeals for the Ninth Circuit affirmed Judge Walker's ruling, stating, "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 9th Circuit held that California's action in stripping away marriage cannot stand. The Supreme Court announced on December 7, 2012 that it would review Hollingsworth v. Perry.

The proponents of Proposition 8 filed their opening brief on January 22. Opponents of the amendment filed their briefs in February.

Both cases also present procedural questions that the Supreme Court asked the parties and special counsel to brief.

Click to listen to the audio or read the transcript of oral arguments in the Perry case.