Supreme Court Oral Argument Cheat Sheet: The Marriage Cases

Supreme Court Oral Argument Cheat Sheet: The Marriage Cases

This month, the Supreme Court will hear two cases involving marriage for gay couples: on March 26th, the Justices will take up Hollingsworth v. Perry, challenging the constitutionality of Proposition 8 (Prop 8, which banned marriage for gay couples in California), and on March 27th, they will hear U.S. v. Windsor, challenging the constitutionality of the Defense of Marriage Act (DOMA). Here’s what you need to know about the cases and what effect they could have on both federal marriage laws and those in your state.

Hollingsworth v. Perry: The Prop 8 Case

In the spring of 2008, the California Supreme Court ruled that its state statute limiting marriage to one man and one woman violated the state constitution’s guarantee of equal protection under the law. Marriage for gay couples became legal in California until that November, when Prop 8 passed by popular vote, amending the state constitution to prohibit marriage for gay and lesbian couples. Shortly thereafter, Kristin Perry was denied a marriage license because her fiancée was a woman. Ms. Perry sued the state of California in federal court, arguing that this ban on marriage for gay couples violated the equal protection clause of the U.S. Constitution.

The district court found that the marriage ban instituted by Proposition 8 was unconstitutional in a broad decision whose reasoning would have affected marriage bans in many other states. The 9th Circuit Court of Appeals agreed that the ban was unconstitutional but narrowed the reasoning substantially—basing its decision on the fact that 1) California had allowed marriage for gay couples and then taken it away, and 2) California gives all the rights of marriage to gay couples through domestic partnerships, it simply denies them the term “marriage,” for which the state can offer no legitimate government interest.

There are many ways the Supreme Court could rule in this case, but the most likely outcomes focus on the state of California itself—not on what the federal constitution says about marriage for gay couples generally. So most of the avenues the Court could take would only directly affect California, or perhaps a handful of other states in similar circumstances.

  • A decision similar to the 9th Circuit decision could apply only to California, the one state where thousands of gay couples have “limited edition” marriages but can no longer get them.
  • The “nine-state solution” could say that it is unconstitutional to relegate gay couples to a status that has all the rights of marriage but isn’t allowed to use the word. This could affect the nine states that currently have civil unions or expansive domestic partnership laws (CA, DE, HI, IL, NV, NJ, OR, RI, CO). The reasoning of the Obama Administration’s brief counsels this outcome.
  • If the Court says that the people who initially put Proposition 8 on the ballot in 2008 aren’t the proper legal parties to defend it now that it is no longer an initiative but simply part of California law (the state currently refuses to defend it), the district court decision striking down the marriage ban could stand, but no other states would be directly affected.

For a more complete breakdown of possible options, see the flow chart at the end of this memo.

United States v. Windsor: The DOMA Case

Edith Windsor, an 83-year-old widow, lost her wife with whom she had shared a 40 year long relationship in 2009. She was then hit with a bill for $350,000 in estate taxes for the home they had lived in together—a bill that was levied only because the federal government refused to recognize her marriage, which is legal in New York. Because of the Defense of Marriage Act (DOMA), Ms. Windsor and her wife were treated as strangers, not spouses, under federal law, and she was not eligible for the spousal exception for inheritance. Ms. Windsor sued in federal court, arguing that Section 3 of DOMA, the provision that requires the federal government to ignore her marriage even though it is legal in her state, violates the equal protection clause of the Constitution. The district court and 2nd Circuit Court of Appeals both ruled for Ms. Windsor, deciding that it is unconstitutional for the federal government to treat one group of married people differently than others by “unmarrying” every gay couple in the 9 states and DC where such marriages are legal.

No matter how the Court rules in Edie Windsor’s case, it will have no direct effect on states where gay couples are currently not allowed to marry. The case only calls into question the part of DOMA that says the federal government cannot recognize any marriage of a gay couple, even if it is legal in their state. Even if the Court decides this section of the law is unconstitutional, it will not affect the section of DOMA that says states can refuse to acknowledge marriages of gay couples from other states. But it will mean that the marriages of gay couples in states that allow it will be respected by the federal government, including for purposes of tax law, Social Security, services for spouses of active duty military personnel and veterans, and immigration.


The Obama Administration has weighed in to urge the Justices to strike down both DOMA and Prop 8 as unconstitutional. So have countless high-profile Republicans, including past and current Members of Congress. And although the House of Representatives is officially defending DOMA in court, 172 Members of the House and 40 Senators have signed onto a brief arguing that the law is unconstitutional. The latest Washington Post poll shows 58% of Americans favor marriage for gay couples, and many people who do not support marriage still believe the federal government should leave marriage law to the states. Sixty-nine percent of the country supports expanding protections for military spouses to those married to gay service members, 68% believes that same-sex spouses like Edie Windsor should be able to inherit without enormous tax burdens, and 66% thinks that a widowed same-sex spouse should receive Social Security survivor benefits. If the Court relegates Proposition 8 and section 3 of DOMA to the history books, the country will accept and embrace those decisions as the next step on our national journey.    

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