The Background: In 2008, California voters approved Proposition 8, a measure limiting marriage to a man and a woman. Last year, the U.S. 9th Circuit Court of Appeals said the proposition had illegally taken away a right to marry that gays had won in the state courts.
In a second case, the justices will review the constitutionality of the Defense of Marriage Act (DOMA) and its provision denying federal benefits to same-sex couples who are legally married. DOMA leaves each state free to decide whether to recognize same-sex marriages for purposes of that state's laws and includes a provision that no state is required to give effect to another state's recognition of same-sex marriages. As the L.A. Times notes, judges in California, New York, and New England states have ruled this law denies gays and lesbians the equal protection of the laws.
Federal circuit courts of appeals are not bound by the decisions of the other circuits, say John G. Malcolm and Elizabeth Slattery of the Heritage Foundation. Thus, for the sake of uniform application of the law across the circuits, the justices need to determine the constitutionality of DOMA.
Why It Matters: The Court's rulings on these two cases could redefine marriage for the entire nation.
The primary issues the Court will evaluate in the DOMA case is what level of scrutiny applies to equal protection challenges in this context and whether the proffered rationales for DOMA satisfy that level of scrutiny. In defending DOMA, the government's solicitor general, who was hired by the House of Representatives, has asserted that the government interests at stake include, among others:
• Preserving a uniform definition of marriage across state lines for purposes of allocating federal benefits,
• Protecting the federal treasury and respecting prior legislative judgments in allocating marital benefits on the understanding that they would apply only to heterosexual married couples,
• Defending state sovereignty and democratic self-governance,
• Exercising caution to avoid "the unknown consequences of a novel redefinition of a foundational social institution,"
• Recognizing heterosexual couples' unique ability to procreate and incentivizing the raising of children by their biological parents, and
• Expressing a preference for optimal parenting arrangements by encouraging childrearing in a setting with both a mother and a father.
The Supreme Court will now decide whether the Constitution enshrines a right to same-sex marriage, say Malcolm and Slatterly, or whether it will leave this divisive issue up to the people of each state and their elected representatives to decide.
In the Prop. 8 case, which has similar implications for marriage across the nation, the Supreme Court has four options:
1. Overturn the 9th Circuit ruling and uphold Prop. 8. This outcome would leave the definition of marriage to the individual states and its voters.
2. Uphold the 9th Circuit ruling, but do so in a way that limits the ruling to California's Prop. 8 legislation.
3. Dismiss the appeal on the grounds that the sponsors of Prop. 8 had no legal standing to defend it in court. This outcome would prevent the Supreme Court from ruling on the merits of the case. It would also leave the outcome of the legislation unclear since it would also vacate the 9th Circuit's ruling.
4. Issue a broad ruling that homosexuals have a constitutional right to marry someone of the same sex. This outcome would strike down the bans on such marriages in 39 states. While many gay rights advocates prefer this choice, others are concerned that such an act of judicial activism would lead to a backlash similar to the Roe v. Wade decision.
The Court is expected to hear oral arguments in March and have a ruling by June 2013.