June 26, 2013

Same-sex marriage victory creates new challenges

The Supreme Court made history Wednesday with two victories for marriage equality, in California and nationwide. In a pair of highly anticipated decisions, the divided court effectively undercut California’s Proposition 8, which bans same-sex marriage. Separately, the court struck down a key part of the federal Defense of Marriage Act, which denies same-sex married couples federal benefits. Together, the rulings provide an emphatic, if incomplete, win for advocates of same-sex marriage.

The Supreme Court made history while it set up new challenges Wednesday with two victories for marriage equality, in California and nationwide.

In a pair of high-profile decisions, the divided court effectively undercut California’s Proposition 8, which bans same-sex marriage. Separately, the court struck down a key part of the federal Defense of Marriage Act, which denies same-sex married couples federal benefits. Together, the rulings provide an emphatic, if incomplete, win for advocates of same-sex marriage.

The decisions address different issues, and neither declares a broad constitutional right to same-sex marriage that covers residents of all 50 states. But in each case, acting on the final day of the term that began last October, a slim 5-4 court majority endorsed a position that helps the same-sex marriage cause, as well as individual couples..

“We’re proud of you guys,” President Barack Obama said in a broadcast telephone call from Air Force One to the two same-sex couples who’d contested Proposition 8, “and we’re proud to have this in California.”

The Proposition 8 case involved a challenge to the 2008 California ballot measure that banned same-sex marriage. On Wednesday, the court concluded that the supporters of the California ban lacked the legal standing to defend the measure. For same-sex couples in California, the real-world result could be they’re able to secure marriage licenses within about 25 days, once an appellate court takes a necessary procedural step.

"As soon as they lift the stay, marriages are on. And wedding bells will ring," California Attorney General Kamala Harris said at a news conference Wednesday morning.

Vikram Amar, a law professor at the University of California at Davis, said, “The only fly in the ointment, possibly, is a county clerk from some conservative county” who may assert that he or she isn’t required to issue a same-sex marriage license. Separately, conservative supporters of Proposition 8 have suggested that the trial judge’s decision striking down the measure applies only to the two couples who filed the lawsuit.

In its ruling, the Supreme Court didn’t clarify the next steps, beyond concluding that Proposition 8 supporters lacked standing to defend the measure.

Standing is the legal term for being eligible to file a lawsuit. To have standing, an individual must have a significant interest in the controversy and must either have suffered an injury or face an imminent threat of injury.

“It is not enough that the party invoking the power of the court have a keen interest in the issue,” Chief Justice John Roberts Jr. wrote, adding that “we have no authority to decide this case on the merits.”

The decision eliminates a 9th U.S. Circuit Court of Appeals ruling and leaves intact a trial judge’s order blocking Proposition 8 from taking effect. Typically, it takes about 25 days for a Supreme Court ruling to filter down to the lower courts, though advocates hope it will happen sooner.

“We’re elated,” Berkeley, Calif., resident Kris Perry – one of the individuals who challenged Proposition 8 – said at a news conference. “Now our children will finally be in a family where their parents are married.”

The four dissenting justices – one liberal and three conservatives – argued that the Proposition 8 opponents should be heard in court. Intriguingly, Justice Anthony Kennedy, who wrote the separate decision striking down part of the Defense of Marriage Act, was among them.

The Defense of Marriage Act case involved a challenge to the 1996 federal law that prohibits same-sex couples who’d been married under state laws from obtaining myriad federal benefits. A different majority from the one that ruled in the Proposition 8 case concluded that portions of the federal law violated the Constitution, as they undermine those states that have chosen to allow same-sex marriage.

“DOMA divests married same-sex couples of the duties and responsibilities that are an essential part of married life,” Kennedy wrote. “It tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage.”

Kennedy joined the court’s four liberal justices in the decision. The court’s four conservatives dissented.

“The Constitution does not forbid the government to enforce traditional moral and sexual norms,” Justice Antonin Scalia wrote in dissent.

Scalia further warned that the lack of a uniform definition of marriage would cause many complications; for instance, for same-sex couples who must figure out their tax filing status when they move from one state to another. In the wake of the ruling, Sen. Dianne Feinstein, D-Calif., and other Democrats said they’d offer legislation to eliminate the Defense of Marriage Act altogether.

Section 3 of the Defense of Marriage Act declares that, for the purposes of providing federal benefits, marriage is “only a legal union between one man and one woman as husband and wife” and a spouse is only a “person of the opposite sex who is a husband or a wife.”

The definition is important because it determines eligibility for a host of federal rights, benefits and privileges.

The Government Accountability Office has identified more than 1,100 areas of federal law in which marriage matters, ranging from tax and welfare benefits to employment and immigration. Same-sex military couples, for instance, are denied housing, health insurance and disability benefits, and are ineligible for burial alongside their spouses in national cemeteries.

“The statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the state, through its marriage laws, sought to protect in personhood and dignity,” Kennedy wrote.

Twelve states – 13, including California – and the District of Columbia recognize same-sex marriage, and a recent Pew Research Center survey found that 72 percent of those asked thought that legal recognition of gay marriage was inevitable.

Each case involved a separate set of facts and distinct legal reasoning.


The challenge was brought on behalf of two same-sex couples, Perry and her partner, Sandra Stier, and Paul Katami and his partner, Jeffrey Zarrillo. Both couples were denied marriage licenses in California because of the Proposition 8 ban.

“I’m a 45-year-old woman,” Perry testified during a 2010 trial over the ban. “I have been in love with a woman for 10 years and I don’t have a word to tell anybody about that.”

The case arose after the state Supreme Court ruled that same-sex couples had the right to marry. Voters subsequently changed the state’s constitution in 2008, through the Proposition 8 ballot, to limit marriages to those between one man and one woman.

After a 12-day trial in San Francisco, U.S. District Judge Vaughn Walker issued a 136-page opinion in August 2010 in which he concluded that Proposition 8 violated the U.S. Constitution.

The 9th U.S. Circuit Court of Appeals upheld Walker’s decision, though for a very state-specific reason that essentially confined its reach to California.

State officials declined to defend the same-sex marriage ban. Instead, conservative individuals argued on its behalf. The California Supreme Court concluded, and the 9th Circuit Court of Appeals accepted the view, that the opponents were authorized to step in since the state had stepped out.


The federal law defining marriage inserted the national government into what traditionally had been state territory.

The case arose from a challenge filed by Edith Windsor, a computer programmer who married her longtime partner, Thea Clara Spyer, in 2007. They remained a couple until Spyer died in 2009. The Defense of Marriage Act prohibited Windsor from receiving a deduction afforded married couples. She had to pay $363,053 in estate taxes, and the Internal Revenue Service denied her refund request.

The House of Representatives, which passed the bill by an overwhelming 342-67, explained in a committee report that it was meant to convey “moral disapproval of homosexuality.” One of the law’s chief backers at the time, current Sen. Tom Coburn, R-Okla., said during the House debate that homosexual conduct was “based on perversion and . . . lust.”

Citing the legislative record, Kennedy said “interference with the equal dignity of same-sex marriages” was the “essence” of the Defense of Marriage Act.

The Obama administration initially defended the act, as is customary for administrations, but it stopped in February 2011 after concluding that Section 3 violated the Constitution. In its place, House Republicans funded the defense of the statute through what’s called the Bipartisan Legal Advisory Group.

Jim Sanders of The Sacramento Bee contributed to this article.

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