Gay Marriage: What’s At Stake in the Supreme Court?

Scales of JusticeBy guest columnist, Lindsay C. Harrison

This March, the Supreme Court will hear arguments in two separate cases with profound implications for gay couples throughout the country.

Windsor – a legal challenge to the Defense of Marriage Act

The first case is United States v. Windsor. The case was brought by Edith Windsor, who married her partner, Thea Spyer, in 2007 after a 40-year engagement. Ms. Windsor cared for Ms. Spyer as she endured pain and paralysis resulting from multiple sclerosis, and upon Ms. Spyer’s death, was required to pay more than $600,000 in estate taxes that she would not have to pay if their marriage were federally recognized. Ms. Windsor brought her case to the Supreme Court, where the federal Defense of Marriage Act (DOMA) is under review.

DOMA was passed in 1996 and signed into law by President Clinton. Section 3 of DOMA declares that marriage is only the legal union of one man and one woman for federal purposes

in the United States. Because of DOMA, a gay couple married in New York must file taxes separately, may not receive Social Security survivors’ benefits, may not declare bankruptcy

jointly, and may not receive any of the other federal benefits afforded to straight married

couples. In Windsor, the Court will decide whether it is constitutional for the federal government to treat gay couples differently from straight couples in the provision of these


If DOMA is overturned, gay couples who are legally married by their state will be entitled to all of the federal benefits available to straight married couples. The stakes in Windsor are therefore quite high for gay married couple.


Perry – a legal challenge to California’s Proposition 8

The second case before the Supreme Court is Hollingsworth v. Perry. Many know this case as

the “Proposition 8” case. By way of background, after the California Supreme Court found a state constitutional right to gay marriage, the people of California voted narrowly in favor of a state constitutional amendment prohibiting recognition of gay marriage. Gay couples brought a lawsuit challenging Proposition 8 as unconstitutional, and that case is now before the Supreme Court. Court-watchers see four possible outcomes.

The broadest possible victory for the plaintiffs would find a constitutional right making gay marriage legal throughout the country. Most view this as unrealistic given the current make-up of the Supreme Court.

Even without a broad victory, the plaintiffs have other ways to win. One would have the Court find that any state willing to provide gay couples with all of the benefits of marriage must call it “marriage” rather than “civil unions.” This would effectively legalize gay marriage in California, as well as seven other states: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.

A still narrower victory would legalize gay marriage only in California. To do so, the Court

could find that it was unconstitutional for California first to provide gay couples with the right to marry only to then take it away without a legitimate reason. This outcome would not legalize gay marriage in any new states, but it would like make permanent gay marriage in those states where it is already legal.

The fourth possibility is a total loss for proponents of gay marriage. That would leave gay

marriage legal only in the District of Columbia and the nine states that have recognized it to date, and would force proponents of gay marriage to pursue it on a state-by-state basis or in the U.S. Congress. It would essentially foreclose the Supreme Court as a route to legalizing gay marriage nationwide.

There is yet another possible outcome in both Windsor and Perry. Both cases could end quite anti-climactically, with the Court opting out of a decision on the merits. That option is available because neither the President nor the State of California has opted to defend DOMA and Proposition 8, respectively. Republican members of the House of Representatives (called, inaccurately, the Bipartisan Legal Advisory Group, or BLAG) intervened to defend the constitutionality of DOMA, while supporters of Proposition 8 stepped in to defend that law. The Supreme Court has suggested that BLAG and the supporters of Proposition 8 may not have standing to defend those laws. If that were true, the Court could decide that it has no proper case before it and could simply put off a decision for another day.

Ultimately, Justice Kennedy is likely to be the swing vote, as he has been in past cases concerning gay rights. For example, he wrote the Court’s opinion declaring unconstitutional laws that criminalized sodomy. He has built up quite a legacy as a champion of fairness for gay people in this country, and it is evident from his judicial opinions that he values how future generations may view him. If he does not believe that there exists a constitutional right for gay couples to marry, he can avoid undoing his legacy by simply deciding not to decide. All eyes will therefore be on him when these cases are argued in late March of this year.


About The Author

Lindsay C. Harrison is a Partner in the Appellate and Supreme Court Practice Group at Jenner & Block LLP. She regularly participates in appellate litigation matters before the federal appellate courts and the Supreme Court and is one of the youngest attorneys to have argued a case in the Supreme Court. As a law student interning with Jenner & Block, she worked of Lawrence v. Texas, the Supreme Court case that declared unconstitutional laws that criminalized sodomy. In 2012, she was named one of the Best LGBT Lawyers Under 40 by the National LGBT Bar Association. She and her wife live with their son in Washington, DC.

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