Supreme Court Takes Case on Same Sex Marriage, DOMA

This column by ACRU Senior Legal Analyst Ken Klukowski was published on December 7, 2012 on

The Supreme Court of the United States announced Friday it would decide two cases involving same-sex marriage and the Defense of Marriage Act (DOMA). By next July, the Court will rule on the government’s role in marriage both in the states and at the federal level.

The justices granted a writ of certiorari in two of the eleven marriage cases pending before the High Court.

One is Hollingsworth v. Perry, which asks the question of whether the Fourteenth Amendment of the U.S. Constitution contained an implied fundamental right to gay marriage, such that no state may define marriage as the union of one man and one woman and all laws to that effect are unconstitutional.

The other is United States v. Windsor, which asks whether Section 3 of DOMA–saying that marriage is between one man and one woman for purposes of federal law–violates the Fifth Amendment of the Constitution.

As part of the Hollingsworth case, the Court has ordered the parties to argue whether the supporters of California’s Proposition 8 have standing under Article III of the Constitution to defend Prop 8 in court when the governor and attorney general of California declined to defend their own state constitution. If the Supreme Court were to hold the supporters lack standing, then the justices would not decide the underlying merits of the case.

Assuming the justices hold the supporters do have standing, these cases cover the two major aspects of the marriage debate. Does the U.S. Constitution demand that gay marriage is the law of the land throughout America? The Supreme Court will likely hear arguments on that question during the second half of March 2013, and hand down a decision in the last week of June 2013.

2012-12-13T22:34:23+00:00Categories: In the Courts, OPED|Tags: , , |