On Dec. 7, 2012, the U.S. Supreme Court stepped squarely into the same-sex marriage debate when it agreed to review two important lower court decisions involving gay marriage. The first case arises from an appeals court ruling striking down the federal Defense of Marriage Act (DOMA), the 1996 law that bars the federal government from recognizing same-sex marriages. The second case also involves a federal appeals court decision – this one striking down Proposition 8, a ballot initiative approved by California voters in 2008 that amends the state constitution to ban gay marriage.

People have been fighting over same-sex marriage in courtrooms around the country for nearly 20 years. Until recently, however, most of the action has been in state courts – from Hawaii and California to Maryland and New Jersey. (See Overview of Same-Sex Marriage in the United States.) The most significant state court decision came in 2003, when the Massachusetts Supreme Judicial Court (the state’s highest court) ruled that the state’s constitution granted gays and lesbians the right to marry.

The U.S. Supreme Court’s decision to take the DOMA case, Windsor v. United States, and the Proposition 8 case, Hollingsworth v. Perry, shifts the judicial focus from state to federal courts. However, it is far from certain that the justices will settle the most important legal question in the same-sex marriage debate: Does the U.S. Constitution guarantee same-sex couples the right to marry?

The Windsor case primarily involves a dispute over discrimination against a minority group – gays and lesbians – and does not directly address the question of whether the Constitution requires states to allow same-sex marriage. The Proposition 8 case, in contrast, involves a decision by a state (in this case, California) to prohibit gays and lesbians from marrying and so might, in theory, provide the court with a better vehicle for ruling on whether the constitution requires the states to recognize same-sex marriage. However, even in Perry, the high court could end up side-stepping the most important constitutional questions and rule more narrowly to uphold or strike down California’s ban on gay marriage.

Challenging the Defense of Marriage Act

The federal Defense of Marriage Act was signed into law by President Bill Clinton on Sept. 21, 1996, after passing in both houses of Congress by wide margins. The law contains two major provisions: The first (Section 2 of the law) gives states that do not allow gay marriage the authority to refuse to recognize same-sex marriages that have been legally performed in other states. Normally, under the “full faith and credit” clause of the U.S. Constitution, states are required to recognize the “public acts … and judicial proceedings” that have taken place in other states. Section 2 of DOMA specifies that this obligation does not apply to same-sex marriages.

The other important provision of DOMA (Section 3) defines marriage as “a legal union between one man and one woman.” Under this provision, the federal government does not recognize same-sex marriage for any purpose, including the filing of federal taxes and the distribution of benefits such as Social Security.

The federal Defense of Marriage Act has been challenged a number of times in federal courts. The Windsor case is one of the more recent and more important of these decisions. Indeed, in Windsor the 2nd Circuit U.S. Court of Appeals not only struck down DOMA but also granted gays and lesbians a higher level of constitutional protection than any other federal appeals courts previously had done. Specifically, the court in Windsor ruled that a statute that discriminates against homosexuals is unconstitutional unless the government can show that it in fact advances an important public policy purpose – a judicial benchmark known as a “standard of review.”

In the past, federal courts have used a standard of review in gay rights cases that is very deferential to the government. This standard, known as “rational basis,” allows a discriminatory statute to remain in force if the government can show that it has any reasonable or legitimate basis for enacting and enforcing it. Such a test is relatively easy to meet since most laws have at least some rationale behind them.

But after deciding that DOMA discriminated against gays and lesbians, the 2nd Circuit did not turn to the rational-basis standard in determining whether the statute could still remain in force. Instead, the panel determined that it would use a tougher standard of review – known as “intermediate scrutiny” – because, it argued, gays and lesbians had long been the objects of significant discrimination and prejudice. Therefore, the court said, they deserve a heightened form of constitutional protection. Intermediate scrutiny requires that the government show more than a rational or legitimate basis for a discriminatory statute.  Instead, the government must show that the law in question substantially advances an important state interest, such as protecting public safety or genuinely protecting the integrity of family life. In Windsor, the 2nd circuit determined that the defenders of DOMA could not make such a showing and thus ruled that the law was unconstitutional. Specifically, the 2nd Circuit ruled that the law violated the U.S. Constitution’s guarantees of equal protection.

Even though intermediate scrutiny is a tougher standard of review than had previously been employed in gay rights cases, it does not offer the highest level of constitutional protection for groups that have traditionally suffered from discrimination. In the past, courts have ruled that laws discriminating on the basis of race or national origin must meet an even higher standard – known as “strict scrutiny” – in order to avoid being struck down. Still, Windsor represents the first time a federal appeals court has used a standard higher than the rational basis one in a case involving gays and lesbians.  If the Supreme Court adopts the intermediate review standard in Windsor, it could throw doubt on the laws in 38 states that limit marriage to opposite-sex couples. States involved in legal challenges would have to come up with a very persuasive justification for their laws preventing same-sex couples from marrying and would have to show that these laws advance important state interests.

In deciding to hear Windsor, the court bypassed two other important DOMA cases before it: Massachusetts v. U.S. Department of Health and Human Services, Gill v. Office of Personnel Management. Like Windsor, both cases also involve challenges to Section 3 of the DOMA statute – the language prohibiting the federal government from recognizing same-sex marriages. And in both cases, a federal district court ruled that DOMA was constitutional, but for different reasons. In Gill, which involved a challenge by an individual, the district court ruled that DOMA violated the Constitution’s guarantees of equal protection, just as a district court had done in Windsor. The Massachusetts case, however, was brought by Massachusetts state officials, who argued that Congress had overstepped its authority by barring federal agencies from acknowledging same-sex marriages legally performed in their state. Because the plaintiff in this case was a state rather than a private individual or group, the district court framed its decision differently, pointing out that marriage has always been the domain of states rather than the federal government. Thus, the court said, DOMA “intrudes” on this core area of state sovereignty, violating the U.S. Constitution’s 10th Amendment, which reserves all powers not specifically given to the federal government to the states or the people. Both rulings were upheld by the 1st Circuit Court of Appeals on May 31, 2012. The outcome in these two cases will remain on hold pending the Supreme Court’s decision in Windsor.

Proposition 8 and the Battle in California

The second case the Supreme Court will consider involves a challenge to Proposition 8, the ballot measure approved by California voters in November 2008 that amended the state constitution to ban gay marriage. The drive to adopt Proposition 8 was prompted by a May 2008 California Supreme Court decision that held that state laws limiting marriage to opposite-sex couples violate the state constitution. By amending the state constitution to prohibit same-sex marriage, Proposition 8 effectively overturned the court’s ruling.

After Proposition 8 was unsuccessfully challenged in state courts on procedural grounds, same-sex marriage supporters initiated legal action in federal court. They argued that the state’s ban on gay marriage violated several parts of the U.S. Constitution, most notably the guarantee of equal protection under the law.

The decision to file suit in federal court was not universally supported in the gay-rights community. Many advocates of gay marriage were concerned that such a lawsuit was premature. Specifically, they worried that it could quickly end up in the Supreme Court, which then might rule that the U.S. Constitution does not give same-sex couples the right to marry. Such a ruling against gay marriage could close off for decades the possibility of a later high court ruling in favor of same-sex marriage. But the high-profile attorneys who signed on to represent the same-sex couples who were suing the state – longtime Democratic lawyer David Boies and former Solicitor General Theodore B. Olson, who served in the George W. Bush administration – argued that there was a good chance of success because of previous Supreme Court rulings. Specifically, they pointed to the court’s 1996 decision in Romer v. Evans, in which the justices struck down Colorado’s nullification of anti-discrimination protections for gays and lesbians, and the court’s 2003 decision in Lawrence v. Texas, which involved a challenge to Texas’ anti-sodomy law. In its ruling in Lawrence, the Supreme Court said that states cannot regulate consensual sexual relations between adults.

In August 2010, after a highly publicized trial in which state officials eschewed their traditional role as defenders of challenged laws and left Proposition 8 to be defended by private supporters of the measure, a federal district court judge in San Francisco, Vaughn Walker, struck down the constitutional ban. Although a voter-approved referendum (such as Proposition 8) deserves great deference, Walker wrote, the ban on same-sex marriage blatantly discriminates against a certain group of citizens – gays and lesbians – and violates their fundamental right to marry and their equal protection rights, both of which are guaranteed under the U.S. Constitution. Like the judge in Gill, Walker said he looked for a legitimate reason that could justify upholding Proposition 8 in spite of these constitutional concerns.  But Walker found that gay-marriage opponents could not produce a convincing reason or “rational basis” to justify the same-sex marriage ban. In Walker’s view, Proposition 8 had been prompted by people’s moral disapproval of homosexuality, and that alone, he concluded, was not enough to justify the enactment of a blatantly discriminatory law.

On appeal, the 9th Circuit upheld Walker’s decision. But the appeals court ruling rested on much narrower grounds than Walker’s decision. Indeed, the appeals court ruled that it did not need to consider the major constitutional questions addressed by Walker, such as whether the U.S. Constitution’s equal protection clause gives same-sex couples the right to marry. Instead, its decision rested on the fact that same-sex couples in California had been granted the right to marry by the state’s Supreme Court in May 2008 – only to have that right revoked by the adoption of Proposition 8 less than six months later. Based on the Supreme Court’s 1996 ruling in Romer v. Evans, the appeals court said that singling out one class of people (gays and lesbians) and taking away an “existing right” without any rational basis was itself unconstitutional.1 Hence, the court said, no other analysis was needed to strike down Proposition 8.

Many legal analysts speculate that by affirming the lower court’s decision on narrow rather than broad constitutional grounds, the appeals court was trying to insulate the ruling from being overturned or even considered by the Supreme Court. They argued that the appeals court, by limiting the scope of the decision, had made the stakes in this case much smaller for the Supreme Court. If the high court either affirmed the 9th Circuit’s ruling or refused to rule on the merits, same-sex marriage would be legal in California but not nationwide – or even in the other eight Western states that also are within the 9th Circuit’s jurisdiction. And because the appeals court’s ruling relied on special circumstances (the state granting and then taking back marital rights for same-sex couples), a decision by the Supreme Court to affirm it might not significantly advance or set back the argument for making same-sex marriage a constitutional right.

Looking Ahead

The Supreme Court’s decision to review the Windsor and Perry cases means that they likely will be argued in March 2013 and decided by June 2013. The court’s decision to hear Windsor was not surprising. Because the case involves a federal law that applies nationwide, the high court would want to avoid having it operate differently from state to state. If the court had not agreed to hear Windsor or the other DOMA cases such as Gill and had let their rulings stand, legally married same-sex couples who reside in New York, Connecticut and Vermont (the states within the 2nd Circuit’s jurisdiction) or Massachusetts, New Hampshire, Rhode Island and Maine (the state’s within the 1st Circuit) would be treated as married for purposes of federal law. At the same time, married same-sex couples living in Iowa, Maryland, Washington or any other states outside the 1st and 2nd Circuits’ jurisdictions would not be treated as married under federal law, because DOMA would still apply in those states.

The court’s decision to review Windsor also may have been influenced by the fact that it involves the relatively narrow issue of whether the federal government must respect each state’s definition of marriage, rather than the broader question of whether all states must allow same-sex marriage. In addition, Windsor gives the court an opportunity – one it may decide not to exercise – to address the question of what is the appropriate standard of review in cases involving discrimination against gays and lesbians.

Meanwhile, the decision to review Perry, the Proposition 8 case, gives the court three choices. First, since the State of California is not defending Proposition 8 in federal courts, leaving the job to private parties, the court has agreed to consider whether these private groups have a legitimate stake in the appeal of the case – a concept known as standing. If the court dismisses the case for lack of standing, it would mean that either the 9th Circuit Court of Appeals decision or the earlier district court decision would stand. In either case, Proposition 8 would be invalid and same-sex marriage would again be legal in California. Second, the high court might decide the case on the narrow grounds on which the 9th Circuit ruled against Proposition 8 — that is, that it involved taking away the pre-existing marriage rights of same sex couples and that such an act is unconstitutional.

A third possibility is that the high court could decide to use Perry as a vehicle to tackle the broader constitutional question. This could have significant consequences for both sides in the debate. An unfavorable outcome for gay-marriage supporters on the broad question of whether the Constitution guarantees same-sex couples the right to marry would be difficult to overturn in the future. By contrast, a ruling that declares a constitutional right to gay marriage would immediately require all states to permit same-sex marriage on precisely the same terms as they permit opposite-sex marriage. Such a sweeping ruling would almost certainly, at least in the short term, provoke a significant political response in states where large majorities are opposed to same-sex marriage. Indeed, the justices cannot help but be aware of the bitter, ongoing protests about Roe v. Wade, the 1973 decision legalizing abortion in all states. Some justices might be reluctant to invite a similar response to a ruling granting all same-sex couples the right to marry.

This report was written by David Masci, senior researcher, Pew Research Center’s Forum on Religion & Public Life, and Ira C. Lupu, F. Elwood and Eleanor Davis Professor of Law Emeritus at The George Washington University.


1 In Romer v. Evans, the Supreme Court struck down an amendment to the Colorado Constitution (approved by the state’s voters in 1992) that nullified state and local anti-discrimination protections for gays and lesbians and prohibited passage of any such anti-discrimination laws in the future. The high court said the Colorado amendment was incompatible with the U.S. Constitution’s 14th Amendment guarantee of equal protection under the law. (return to text)

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