Supreme Court Takes on Same-Sex Marriage Issues

Supreme Court Takes on Same-Sex Marriage Issues


by: Christina Hamalian, Junior Editor


            The Supreme Court has, this past month, heard two cases relating to same-sex marriage. The first case deals with California’s passing of Proposition 8, Hollingsworth v. Perry.[1] The other case challenges the constitutionality of the Defense of Marriage Act (DOMA)[2], US v. Windsor.[3] Therefore, there is the possibility that the issue of same-sex marriage will be decided on both the state and federal level at the same time.

            Before Proposition 8 was passed in November 2008, Californian voters had approved Proposition 22, which amended California’s Family Code to define the only recognizable marriage as one between one man and one woman.[4] However, the California Supreme Court ruled that Proposition 22 violated the Californian constitution and their constitution allowed same-sex marriage.[5] It did not take long for the voters of California to amend their constitution, through Proposition 8, to take away the right to same-sex marriage. The plaintiffs in Hollingsworth are two same-sex couples wanting to get married in California, but cannot because of Proposition 8.

            In Windsor, Plaintiff Edith Winsor challenges the constitutionality of §3 of DOMA, which requires that any federal law dealing with marriage will only consider marriages between one man and one woman as valid.[6] When her wife, whom she married in Canada in 2007 after being engaged for 40 years,[7] died and her estate passed to Edith, she was required to pay $363,053 in federal estate taxes that she would have had to pay had she been married to a man.

            Both cases have procedural issues that may allow the Court to dodge the issue completely, but hopefully they will make a decision on at least one. In Hollingsworth, those defending the Proposition, citizens who helped initiate its passage, may lack standing.[8] In Windsor, there is an issue as to whether the federal government should be able to appeal a decision that it agrees with or whether U.S. House of Representatives’ Bipartisan Legal Advisory Group has standing to defend DOMA.[9]

            If the Court can get passed the procedural issues, then this can make for some interesting decisions. Past Supreme Court cases involving a state infringing on a couple’s right to marry usually entail strong language about the fundamental right to marry. In Loving v. Virginia, where the Supreme Court struck down a Virginian law prohibiting interracial marriage, the Court held that:

[m]arriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.[10]

The 9th Circuit, when finding Proposition 8 unconstitutional, uses similar language when it writes that:

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. 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 Constitution simply does not allow for “laws of this sort.”[11]

When the 2nd Circuit found DOMA unconstitutional, the Court held that:

Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status—however fundamental—and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.[12]

What does all of this mean? That this is an exciting time for civil rights and for the Supreme Court. The decisions for these cases won’t be released until late June, and any guesses as to how the Supreme Court may rule would be just guesses, but I hope that they come to an actual decision instead of ignoring the issues until the issue is no longer such a hot topic.


[1] Hollingsworth v. Perry, No. 12-144, Dec. 2, 2012.

[2] 1 U.S.C. §7.

[3] United States v. Windsor, No. 12–307.Dec. 7, 2012.

[4] Amy Howe,“Court to tackle California’s ban on same-sex marriage: In Plain English,”

[5] Id.

[6] Windsor v. United States, 699 F.3d 169, 175-76 (2d Cir. 2012) cert. granted, 133 S. Ct. 786, 184 L. Ed. 2d 527 (U.S. 2012).

[7] Edith Winsor, “Edith Windsor: My late wife’s spirit was with us in court,”

[8] “Proposition 8: California Gay Marriage Argument At High Court Tuesday,”

[9] Jacob Combs, “Supreme Court Likely to Strike Down DOMA — Here’s Why,”

[10] Loving v. Virginia, 388 U.S. 1, 12 (1967).

[11] Perry v. Brown, 671 F.3d 1052, 1063-64 (C.A.9 (Cal.), 2012).

[12] Windsor v. U.S., 699 F.3d 169, 188 (C.A.2 (N.Y.), 2012).


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