This is the first of a series of posts on the marriage equality cases the Supreme Court will consider in the upcoming term. This one focuses on the background of the cases. The next will focus on similarities and differences between the two.
On 30 November, the Supreme Court was to announce which, if any, of the cases concerning same-sex marriage it would consider in the coming term. After dragging that decision out for an additional couple of days, the Court eventually decided to take on not one, but two of these cases. Hollingsworth v. Perry, the Federal suit against California’s Proposition 8, and United States v. Windsor, a Federal case from New York asking that section 3 of the Defense of Marriage Act (DOMA) be declared unconstitutional.
The Court almost had to take on one of the DOMA cases, of which Windsor is most prominent; when a lower court declares a major Federal law with an impact on countless regulations unconstitutional, this is a thing that needs to be addressed. That Perry would go forward was less certain, as the 9th Circuit’s decision could have easily been allowed to stand, striking down Prop. 8 but leaving the larger question of the right to marriage untouched.
United States v. Windsor
In 1993 the Supreme Court of Hawaii, considering the case of three same-sex couples denied marriage licenses by the state, held that limiting marriage to opposite-sex couples likely violated the plaintiffs’ state constitutional rights to equal protection under the law, and remanded the case for more information. Panic set in at the possibility of Hawaii marrying same-sex couples from across the nation, and in 1996 Congress passed the Defense of Marriage Act. These fears proved unfounded, as in the interim Hawaii amended its constitution to limit marriage to heterosexual couples and the case was dismissed. But DOMA does was here to stay.
DOMA does two things. First, it protects states from having to recognize same-sex marriages from other states. Second, it required the federal government to only recognize marriages between a man and a woman. This affects a wide-range of things, from federal employment benefits to tax burdens. Windsor specifically concerns the estate tax, a one-time payment on assets received as part of an inheritance.
New York residents Edith Windsor and Thea Clara Spyer got married in Canada in 2007. When Spyer died, she left Windsor a fortune large enough to generate an estate tax burden of over $350,000. Surviving spouses are exempt from the estate tax, but DOMA prevented the government from recognizing her marriage. She sued to get the money back, arguing that DOMA violated her rights to equal protection under the 14th Amendment.
Hollingsworth v. Perry (previously Perry v. Schwarzenegger, then Perry v. Brown)
In response to DOMA, a lot of states that hadn’t already done so scrambled to codify marriage as being between a man and a woman. In 2000, California voters passed Proposition 22. Prop 22 made legally defined marriages as heterosexual but didn’t amend the state constitution.
In 2004, San Francisco initiated plans to grant marriage licenses to same-sex couples. Several cases arose out of this decision, brought by both supporters of Prop 22 and eventually by San Francisco, after its plans were halted by the state courts. The cases were consolidated under the name “the Marriage Cases,” and reached the California Supreme Court in 2008. Prop 22 was struck down, with the Court holding that it violated the equal protection requirement of the state constitution.
Finding a right under Calfornia’s constitution, rather than the U.S. Constitution makes a difference. California’s equal protection clause is basically the same as the U.S. version. (The U.S. Constitution reads, “[No State shall] deny any person with its jurisdiction the equal protection of the laws; California’s says, “A person may not be denied equal protection of the laws.) But the U.S. Supreme Court can overturn what California courts say about the U.S. Constitution, on the other hand, it can’t question what they say about California’s constitution.
Without further judicial recourse, opponents of marriage equality next proposed Proposition 8, which amended the state constitution to define marriage as being between a man and a woman, effectively undoing the Marriage Cases. After a failed case in state court (based on theories of law that are specific to California and which I’m not qualified to address) , two same-sex couples filed suit in Federal Court claiming Prop 8 violated their equal protection rights under the U.S. Constitution.
Both Edith Windsor and the Perry plaintiffs won at the Circuit level. The Supreme Court granted cert to review those decisions, as well as an ancillary issue involving the legal doctrine of standing. My next post will address these issues, where these cases are similar, and where they depart from each other.