Gay Marriage in Court: What States Need to Know

Two cases covering same-sex marriage go before the U.S. Supreme Court this week. Here’s a primer on the cases and the different routes the court might take.

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Most people probably know that the U.S. Supreme Court will hear arguments this week over whether same-sex marriage should be legal in this country. But there might be some confusion about what exactly the cases before the court are, and what questions the justices will have to answer before making their decision.

The cases ask some fundamental questions. Some questions deal with individual rights, like whether same-sex couples should be allowed to marry the same way opposite-sex couples are. Others will deal with state-federal relations, like whether the federal government should be able to ignore state laws that legalize same-sex marriage and whether states should be allowed to set policy on same-sex marriage at all.

Nine states plus the District of Columbia allow same-sex marriage, and six states -- mostly recently Colorado -- recognize same-sex civil unions.

 this week will be reporting from the Supreme Court in Washington, D.C.

But first, here’s a primer on the two cases, which questions must be addressed and the different routes the court might take in answering them. The American Bar Association (ABA) and SCOTUSBlog have provided the legal analysis that serves as the basis for this preview. For a comprehensive analysis of the case in all its complexities, read this ABA brief.


Dennis Hollingsworth v. Kristin M. Perry

The first case, to be heard Tuesday, challenges California’s Proposition 8, which was approved by state voters in 2008 and explicitly defines marriage as between a man and a woman. Two couples sued to challenge the constitutionality of the initiative, arguing that it violates the Equal Protection Clause in the 14th Amendment. Both the U.S. District Court of Northern California and then the Ninth Circuit Court of Appeals struck down Prop. 8 but on slightly different grounds.

The District Court declared that any law that restricts the rights of gay couples is unconstitutional. The Circuit Court concluded that Prop. 8 was illegal because California had already given marriage rights to same-sex couples -- but then took them away. In other words, the Circuit Court’s ruling doesn’t apply to every law that restricts rights for gay people, only ones that take away previously existing rights.

That’s how the case got to the U.S. Supreme Court, which will have to answer two questions:

1. Do the petitioners (supporters of Prop. 8) have standing to challenge the lower courts’ rulings?

2. If so, does Prop. 8 violate the rights of same-sex couples under the Equal Protection Clause?

The first question will determine whether the court makes any substantive ruling. It's being raised because the petitioners in this case are not actually state officials who would usually be defending a state law in court. California Gov. Jerry Brown and his administration have declined to defend Prop 8. So instead, a coalition that supports traditional marriage brought the case forward, and the court must decide if they have standing. The petitioners argue that they do, while the defendants (opponents of Prop. 8, i.e. supporters of same-sex marriage) argue that they don’t because they will not be harmed if gay couples are allowed to marry. The court could either:

  • Dismiss the case because the petitioners lack standing. In this situation, the rulings overturning Prop. 8 would stand; or
  • Decide the petitioners do have standing and make a ruling on the case’s merits.
If the court decides the petitioners do have standing, the justices have a number of avenues they could take in deciding whether Prop. 8 is unconstitutional. Here are the likeliest possible outcomes:

  • The court declares that Prop. 8 is constitutional, thus concluding that the initiative does not violate the Equal Protection Clause. This would likely leave decisions about same-sex marriage to individual states and their voters.
  • The court declares that Prop. 8 is unconstitutional, on the same grounds as the Circuit Court, because it takes away rights that the state had previously granted same-sex couples. This would be the narrowest ruling and would apply only to California.
  • The court declares that Prop. 8 is unconstitutional because states like California, which grant spousal benefits similar to marriage to same-sex couples but deny them the right to ‘marry’ properly, must allow them to formally marry under the U.S. Constitution. This is the position supported by the Obama administration, which is serving as a ‘friend of the court.’ It would likely apply to eight states, including California.
  • The court declares that Prop. 8 is unconstitutional, on the same grounds as the District Court, because it violates same-sex couples' fundamental rights under the Equal Protection Clause. This would be the broadest ruling, likely striking down any state or federal law that denies any gay couples the right to marry.

United States v. Edith Schlain Windsor

The second case, to be heard Wednesday, challenges the federal Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman under federal law and prohibits the federal government from recognizing same-sex marriages that are legal under state law. The lawsuit was brought by a New York couple who was married in Canada. When her partner died and left her her estate, Edith Schlain Windsor filed for a federal tax exemption for the inheritance, but the IRS denied her application under DOMA.

The case went first to the U.S. District Court and then to the Second Circuit Court of Appeals -- both of which ruled that DOMA is unconstitutional. That’s how the case arrived at the U.S. Supreme Court, and again, the court will have to answer two questions:

1. Does the court have jurisdiction to hear the case?  

2. If so, does DOMA, by defining marriage as between a man and a woman, violate the Equal Protection Clause?

Again, there are tricky jurisdictional questions to answer before the court gets to the merits of the case. Because the Obama administration reversed its position on DOMA -- first defending the law then switching to agree with the lower courts' rulings -- the question has been raised if there's any dispute to be heard at all. Then, in response to the administration’s action, a bipartisan group of U.S. representatives inserted themselves into the case to defend the law.

It's an admittedly muddy situation. Here are the likeliest routes for the court to address the question of jurisdiction:

  • The court decides that it does not have jurisdiction because the Obama administration agrees with the lower courts’ decisions and the U.S. representatives do not have a valid stake in defending the law. This would effectively toss the case from the court without any ruling.
  • The court decides it does have jurisdiction because there's still a grievance between the Obama administration and Windsor. This position is supported by the federal government and the petitioner because, though the administration agrees with the lower courts, it still hasn’t awarded a tax exemption to the woman.
  • The court decides it does have jurisdiction because the group of U.S. representatives has a valid stake in defending a law passed by Congress.
If the court concludes it does have jurisdiction, then it must make a ruling about whether DOMA violates the constitutional right to equal protection.

The central questions of the case revolve around both individual liberty and the state-federal relationship, as part of DOMA’s impact of ignoring state laws that have legalized gay marriage. Another part of the court’s consideration is what level of scrutiny to apply to DOMA. In other words, how closely tied to the federal government’s functions does the law’s prohibition on recognizing same-sex marriage need to be?

Once again, the court has several avenues to choose from when making its ruling, though the likely outcomes seem much simpler in this case. They are:

  • The court decides DOMA is unconstitutional because it violates the Equal Protection Clause. This would likely only require that the federal government recognize same-sex marriages that are legal under state law. It would likely not make same-sex marriage legal nationwide because the power to define marriage is generally delegated to the states. But same-sex married couples would be privy to federal benefits.
  • The court upholds DOMA as constitutional and concludes it does not violate the Equal Protection Clause. This would not affect state laws on same-sex marriages -- they would be legal or illegal under different state statutes -- but the federal government would still not provide federal benefits to same-sex couples that are married under state law.
Much more coverage will come this week as Governing reports live from the Supreme Court proceedings. 

Same-Sex Marriage State Laws Map

The following map shows states' policies legalizing or prohibiting same-sex marriage, current as of March 2013. Click a state for more details.

NOTE: Please zoom out to view Alaska and Hawaii

State Legislation
Same-sex marriage legalized
Civil unions legalized
Constitutional or statutory provisions prohibiting same-sex marriage
Other; click state for details


Dylan Scott is a GOVERNING staff writer.