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to Section One | to Arts & Entertainment
posted Friday, January 11, 2013 - Volume 41 Issue 2
DOMA overturned? - Supreme Court will hear DOMA, Prop 8 cases in March
Section One
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DOMA overturned? - Supreme Court will hear DOMA, Prop 8 cases in March

by Mike Andrew - SGN Staff Writer

The U.S. Supreme Court announced January 7 that it will hear arguments in Hollingsworth v. Perry on March 26, and Windsor v. United States the next day.

Hollingsworth is the case in which the Ninth Circuit Court struck down California's Prop 8, and Windsor is the case in which the Second Circuit ruled DOMA unconstitutional.

The Prop 8 case will be argued by Ted Olson and David Boies, the AFER (Americans for Equal Rights) team that first brought suit to invalidate the measure in 2009.

'Our Constitution guarantees loving couples like AFER's plaintiffs - Kris Perry and Sandy Stier, and Paul Katami and Jeff Zarrillo - nothing less than full federal marriage equality,' AFER said in a statement.

'Prop 8, DOMA, and laws like them harm countless Gay and Lesbian Americans, singling them out for unequal, second-class treatment under the law.'

Federal District Judge Vaughn Walker originally ruled in 2010 that Prop 8 violated the equal protection and due process clauses of the U.S. Constitution, but when the Ninth Circuit reviewed the case, it issued a much narrower ruling, saying essentially that California could not grant equal marriage rights and then take them away from same-sex couples only.

STANDING IS AN ISSUE
When the Supreme Court decides the Prop 8 case, it does not have to address the big constitutional issues raised by Judge Walker's ruling.

For example, the court could rule that Prop 8's sponsors, who stepped in to defend the measure when California's governor and attorney general declined to do so, lack standing to appeal the Ninth Circuit's ruling. The justices already have asked lawyers to address the question of standing, so this course is a real possibility.

If the court decides that the Prop 8 supporters lack standing, it may send the case back to the district court for review - and an uncertain future, because the original court ruling technically only prevented certain state and local officials from enforcing the measure.

The court could also confine itself to the narrow reasoning used by the Ninth Circuit and only address the specific history of the law in California. In that case, the ruling would only affect same-sex couples in that state and would have no broader implications.

DOMA BRIEF REQUESTED
In the Windsor case, on the constitutionality of DOMA, the court has also asked about standing, because the Obama administration has declined to defend DOMA in court. In fact, the court has specifically directed Massachusetts attorney Vicki Jackson to file a brief arguing that 'that the Executive Branch's agreement with the court below that DOMA is unconstitutional deprives this [Supreme] court of jurisdiction to decide this case.'

'One possibility is that the Court avoids the DOMA question entirely,' said Adam Winkler, a law professor at UCLA. 'The Court could say that the House committee that's defending DOMA is not a proper party to the case. Because the Obama administration has refused to defend DOMA, this would mean that the case would be sent back to the lower courts.'

Legal observers believe that in that case, the law would eventually find its way back to the Supreme Court.

MAJOR CONSEQUENCES
If the court determines that Section 3 of DOMA violates the constitutional guarantee of equal protection and due process, Gay and Lesbian couples in states where same-sex marriage is legal would begin to receive federal perks for married couples, such as retirement and tax benefits. But states where marriage equality is not the law would be under no obligation to allow same-sex marriages.

Similarly, if the justices determine that DOMA is valid, states where same-sex marriage is already legal would not be compelled to abolish it, but couples would not have the same federal rights and privileges as opposite-sex couples.

In addition to being denied tax and Social Security survivor benefits, Gay and Lesbian couples would continue to be deprived of the ability to sponsor foreign spouses for legal immigration status, as opposite-sex spouses are permitted to do.

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