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Hollingsworth v. Perry and United States v. Windsor

Noah Baron

For decades, marriage equality has been a centerpiece of the “culture wars”—the long-running political debate over contentious social issues. In part because, until recently, supporters of marriage equality were in the clear minority, the issue was used to mobilize and energize social conservatives. As a result, the debate has found its way into state and federal legislatures and executive offices, state-level referenda, and the judiciary. In many cases, conservatives won—and today, 28 states have constitutional bans on same-sex marriage and 18 states and the District of Columbia have marriage equality.

On June 26, 2013, the U.S. Supreme Court ruled on the constitutionality of two anti-marriage equality measures: Proposition 8, a California ballot initiative that amended the state constitution to recognize only marriages between a man and a woman, and the federal Defense of Marriage Act (DOMA), a 1996 law that clarified that the federal government would only recognize marriages between a man and a woman. Although enacted years apart and through different methods, the two measures sought to achieve the same goal: Preventing same-sex couples from marrying.

In 1996, Congress passed DOMA by a wide margin. Among other things, the legislation prohibited the federal government from recognizing same-sex marriages, regardless of whether the couple had a marriage license from their state. Although the law did not prevent states from recognizing same-sex marriages, it did have far-reaching consequences for same-sex couples and LGBT people generally. First, it sent the message to lesbian, gay, and bisexual Americans that their relationships were valued less than those of heterosexual Americans. Second, even after states began to recognize same-sex marriages, the law prevented legally married same-sex couples from receiving numerous benefits from the federal government, ranging from tax benefits and Social Security to, for those with a spouse in the military, being informed of death.

In 2008—12 years after Congress passed DOMA—a narrow majority of California voters approved Proposition 8, which stripped same-sex couples of the right to marry and overturned a state Supreme Court decision holding that marriage equality was required by the state constitution. Although opponents of marriage equality celebrated that night, their victory spurred advocates for equality under the law into action. In the weeks that followed, thousands of Americans took to the streets to express their opposition to Proposition 8 and similar marriage bans.

The Supreme Court Decisions
A group of same-sex couples filed a lawsuit in federal court challenging the constitutionality of Proposition 8, saying that it was a denial of the equal protection of the laws and of the fundamental right to marry. Initially, the state of California defended the referendum. However, after the district court held that any state-level ban on same-sex marriage was a violation of the 14th Amendment’s requirements of equal protection and due process, the state refused to appeal.

Neither the district court decision nor the state’s decision to stop defending the referendum pleased the proponents of Proposition 8. As a result, they requested to become the primary legal representatives for the referendum to continue the case and the court agreed. After another victory for marriage equality at the appellate level, the U.S. Supreme Court took the case, Hollingsworth v. Perry.

On June 26, the Court held, 5-4, that proponents of Proposition 8 lacked the standing to bring the case—meaning that the proponents could not defend the proposition in lieu of the state government. In order to have “standing,” a party must be able to show three things: 1) that it has suffered, or is about to suffer, a specific and material harm; 2) that the legal case is related to that harm; and 3) that winning the case is likely to provide relief to that injury. Although proponents were arguably able to meet the last two requirements, they were unable to meet the first. Writing for the majority, Chief Justice John Roberts said that “[t]heir only interest was to vindicate the constitutional validity of a generally applicable California law. . . [S]uch a ‘generalized grievance’ . . . is insufficient to confer standing.”

Justices Antonin Scalia, Ruth Bader Ginsberg, Stephen Breyer and Elena Kagan joined in the majority opinion. Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, and Sonia Sotomayor dissented.

While the holding was primarily technical, the impact has been real. Because the proponents of Proposition 8 did not have standing to defend the law, they could not have appealed the district court’s decision – which means that the district court’s decision is the final word in that case. As a result, marriage equality is now law in the state of California.

As the Proposition 8 case was working its way to the Supreme Court, a constitutional challenge to DOMA was doing the same. In 2007, Edie Windsor and her partner of 40 years, Thea Spyer, travelled to Canada to marry and then returned to their native New York, which recognized same-sex marriages performed elsewhere. Two years later, Spyer passed away and left her entire estate to Windsor. If they had been a heterosexual couple, Spyer’s estate would not have been subject to any tax. But because Windsor and Spyer were both women, DOMA required the federal government to treat them as having no legal relation; as a result, the Internal Revenue Service forced Windsor to pay $363,053 in taxes. In court, Windsor argued that Section 3 of DOMA was a violation of the Due Process clause of the Fifth Amendment—and a majority (5-4) of the Supreme Court agreed.

In his majority opinion in United States v. Windsor, Justice Anthony Kennedy said:

DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency... By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects.…

Justices Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined in the majority decision. Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito dissented.

Although both cases were wins for marriage equality, the Court did not give all same-sex couples across the nation a clear victory. Today, same-sex spouses in states that recognize their marriages receive the same benefits under federal law to which their heterosexual counterparts are entitled. But much work remains to be done for the millions of Americans who still live in states where marriage equality is not a reality.

Noah Baron is a Summer 2013 Leadership Conference Education Fund legal intern. He is a law student at Georgetown University Law Center.

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