Gay Marriage in the US Supreme Court, 2013



On June 26, 2013, the US Supreme Court in a 5-4 decision in United States v. Windsor declared unconstitutional part of the federal Defense of Marriage Act (DOMA) which defined marriage solely as a legal union between a man and a woman. Also on June 26, 2013, and also in a 5-4 decision, the US Supreme Court declined to address the constitutionality of California's Proposition 8 ballot initiative in Hollingsworth v. Perry.

The Court heard oral arguments in the DOMA case on Mar. 26, 2013. Justices heard oral arguments on Proposition 8 on Mar. 27, 2013.

Please see below for case summaries, audio and transcripts of the oral arguments, and to read the Court's decisions.

In 2013 and 2014, following the United States v. Windsor decision, gay marriage bans were overturned by court rulings in several states, but those rulings were put on hold pending appeals to the US Supreme Court. On Oct. 6, 2014, the Supreme Court declined to hear appeals from five of those states, and the decision immediately cleared the way for legal gay marriage in Indiana, Oklahoma, Utah, Virginia, and Wisconsin. Six other states in which gay marriage bans had been overturned, Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming, were also affected by the Supreme Court ruling because they were in the jurisdictions of the lower courts that had overturned the gay marriage bans.



Dennis Hollingsworth v. Kristin M. Perry Heard Mar. 26, 2013

Summary:
In a 4-3 ruling on May 15, 2008, the California Supreme Court overturned state laws banning gay marriage. On Nov. 4, 2008, 52.3% of California voters approved ballot measure Proposition 8, making same-sex marriage illegal in the state. On May 26, 2009, the California Supreme Court upheld Proposition 8’s gay marriage ban, but on Aug. 4, 2010, US District Judge Vaughn R. Walker struck down Proposition 8 as unconstitutional, and on Feb. 7, 2012, a three-judge panel of the US 9th Circuit Court of Appeals upheld Walker’s ruling. The proponents of Proposition 8 appealed the case to the US Supreme Court on July 31, 2012. The Supreme Court agreed to hear the case by granting a writ of certiorari on December 7, 2012, and oral arguments were heard on March 26, 2013. According to supremecourt.gov, the justices were to decide: "(1) Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and (2) whether petitioners have standing under Article III, § 2 of the Constitution in this case (the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case)."

On June 26, 2013, in a 5-4 decision (169 KB) , the Supreme Court ruled that the defenders of Proposition 8 had no standing to bring the case before the Court, as California state officials had chosen not to defend the proposition. Since the lower court had already declared Proposition 8 to be unconstitutional, the decision was considered to have cleared the way for gay marriages to resume in the state.

Listen to Audio of Oral Arguments

Read Transcript of Oral Arguments

Read the Decision

Select Quotes from the Justices:


Sonia Sotomayor:
"Outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the Government could make? Denying them a job, not granting them benefits of some sort, any other decision? If that is true, then why aren't they a [protected] class? If they're a class that makes any other discrimination improper, irrational, then why aren't we treating them as a class for this one thing? Are you saying that the interest of marriage is so much more compelling than any other interest as they could have?"

Samuel Alito:
"The one thing that the parties in this case seem to agree on is that marriage is very important. It's thought to be a fundamental building block of society and its preservation essential for the preservation of society. Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn't a lot of data about its effect. And it may turn out to be a -- a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe. But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we do not have the ability to see the future. On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?

Anthony Kennedy:
"I think there's substance to the point that sociological information [about allowing gay couples to marry] is new. We have five years of information to weigh against 2,000 years of history or more. On the other hand, there is an immediate legal injury or legal -- what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California... that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?"


Select Quotes from Others:

PRO GAY MARRIAGE CON GAY MARRIAGE
David Boies, JD, partner at Boies, Schiller & Flexner LLP and counsel for Kristin Perry in Hollingsworth v. Perry, wrote in his Aug. 24, 2012 amicus curiae brief to Hollingsworth v. Perry (available on scotusblog.com):

"[T]he evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect. That finding follows inexorably from this Court’s equal protection jurisprudence, the extensive trial record, and Proponents’ repeated concessions that gay men and lesbians have faced a history of discrimination based on a trait that has no bearing on their ability to contribute to society... [T]here is no group in American society who has been targeted by ballot initiatives more than gays and lesbians, and they have essentially lost a hundred percent of the contests over same-sex marriage. Indeed, the undisputed fact that gay men and lesbians have been subjected to a history of discrimination based on a trait that bears no relationship to their ability to contribute to society is sufficient, in and of itself, to render classifications based on sexual orientation 'suspect' and to give rise to heightened scrutiny."

The National Association of Evangelicals wrote in its Aug. 31, 2012 amicus curiae brief to Hollingsworth v. Perry (available on scotusblog.com):

"Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. The Ninth Circuit in substance declared that the religious vision of marriage is unconstitutional and thus, henceforth, only the personal autonomy vision – with its inevitable embrace of same-sex marriage – shall have legal effect. The court, in the name of the Constitution, thereby inserts a wedge between legal and religious visions of marriage at the definitional level. Where the state and religion once cooperated to support marriage under a common understanding of its essential definition, the decision below ensures profound disagreements over the very nature and purpose of this vital institution. And with the court below pronouncing that long recognized rationales for the traditional institution of marriage are irrational, many people of faith and many religious organizations justifiably fear that legally sanctioned genderless marriage, rather than peacefully coexisting with the contemporary man-woman marriage institution, will actually displace and replace it."


United States v. Edith Schlain Windsor Heard Mar. 27, 2013

Summary:

The Defense of Marriage Act (DOMA), enacted on Sep. 21, 1996, is a federal law that restricts federal marriage benefits and inter-state marriage recognition to marriages between members of the opposite-sex. Plaintiff Edie Windsor, 83, brought suit against the federal government after the Internal Revenue Service cited DOMA in denying her a refund for the $363,000 in federal estate taxes she paid following the 2009 death of Thea Spyer, her partner for over 40 years. Windsor and Spyer had married in Canada in 2007, but resided in New York. Because Windsor would have been eligible for an estate tax exemption had Spyer been a man, she argues that DOMA violates her equal protection rights under the Fifth Amendment. According to supremecourt.gov, the justices will decide: "(1) Whether 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; (2) whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and (3) whether the Bipartisan Legal Advisory Group of the United States House of Representatives has standing under Article III, § 2 of the Constitution in this case (the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case)."

On June 26, 2013, in a 5-4 decision (320 KB) , the Supreme Court ruled that part of DOMA violates the equal protection rights of same-sex married couples, who must not be denied the same federal benefits granted to heterosexual married couples.

Listen to Audio of Oral Arguments

Read Transcript of Oral Arguments

Read the Decision

Select Quotes from the Justices:

Ruth Bader Ginsburg:
"[Marriage is] not a question of additional benefits. I mean, [it touches] every aspect of life. Your partner is sick. Social Security. I mean, it's pervasive. It's not as though, well, there's this little Federal sphere and it's only a tax question.
It's as Justice Kennedy said, 1100 statutes, and it affects every area of life. And so he was really diminishing what the State has said is marriage. You're saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage."

Anthony Kennedy:
"You think Congress can use its powers to supercede the traditional authority and prerogative of the States to regulate marriage in all respects? Congress could have a uniform definition of marriage that includes age, consanguinity, etc.?...
Well, I think it is a DOMA problem. The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage. Well, it applies to over what, 1,100 Federal laws, I think we are saying. So I think there is quite a bit to your argument that if the tax deduction case, which is specific, whether or not if Congress has the power it can exercise it for the reason that it wants, that it likes some marriage it does like, I suppose it can do that. But when it has 1,100 laws, which in our society means that the Federal Government is intertwined with the citizens' day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody."

John Roberts:
"I would have thought... that the Executive's obligation to execute the law includes the obligation to execute the law consistent with the Constitution. And if he has made a determination that executing the law by enforcing the terms is unconstitutional, I don't see why he doesn't have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we'll wait till the Supreme Court tells us we have no choice."


Select Quotes from Others:

PRO GAY MARRIAGE CON GAY MARRIAGE
The Anti-Defamation League, a non-profit organization dedicated to stopping the "defamation of the Jewish people and to secure justice and fair treatment to all," wrote in its Mar. 1, 2013 amicus curiae brief to United States v. Windsor (available at scotusblog.com):

"Religion plays an important role in the lives of many Americans, and many lawmakers are undoubtedly guided in their legislative decision-making by personal religious and moral beliefs... [A] law must be rationally related to a legitimate government interest beyond the desire to disadvantage a group on the basis of moral disapproval. DOMA lacks such other interest. The law is therefore unconstitutional under the Equal Protection guarantee of the Fifth Amendment... The Court has held that 'the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.' As Justice O’Connor observed, the Court had 'never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.'"

The Family Research Council, a non-profit organization "dedicated to the promotion of marriage and family and the sanctity of human life in national policy," wrote in its Jan. 24, 2013 amicus curiae brief to United States v. Windsor (available at scotusblog.com):

"The Defense of Marriage Act does not discriminate between heterosexuals and homosexuals, but between opposite-sex married couples and same-sex married couples. Although DOMA admittedly has a greater impact on homosexuals than heterosexuals, that impact, under this Court's precedents, is not constitutionally relevant unless it can be traced back to an intent or purpose on behalf of Congress to discriminate against homosexuals, as opposed to the mere knowledge that it would have a disparate impact on them. Neither the plaintiff nor the Government, however, has presented any relevant evidence of discriminatory intent or purpose on the part of the Congress that enacted DOMA or President Clinton, who signed the bill into law."






Related Links:

1. 
States with Legal Gay Marriage and States with Same-Sex Marriage Bans

2. Same-Sex Marriage Timeline

3. 2012 Presidential Candidates' Positions on Gay Marriage