The Supreme Court will hear two cases
related to gay marriage starting Tuesday.
On Tuesday, the justices will consider
a challenge to Proposition 8, a constitutional amendment approved by
California voters in 2008 which defines marriage as a heterosexual
union.
The following day, Wednesday, the court
will hear oral arguments in a case involving the Defense of Marriage
Act (DOMA). DOMA was approved by Congress and signed into law by
President Bill Clinton in 1996. Because of DOMA, the government is
prevented from recognizing the legal marriages of gay and lesbian
couples. Gay couples can currently marry in 9 states plus the
District of Columbia. An additional 11 nations have legalized such
unions.
Doug NeJaime, a professor who teaches
Family Law & Sexuality at Loyola Law School, wrote in
anticipation of this week's arguments.
“This week the Court will hear
arguments in two key cases involving same-sex marriage:
Hollingsworth v. Perry, the challenge to California's
Proposition 8, which eliminated same-sex couples' right to marry; and
United States v. Windsor, the challenge to Section 3 of the
Defense of Marriage Act (DOMA), which denies federal recognition to
same-sex couples' valid state law marriages. The Justices' arguments
may reveal not only whether they are likely to rule on the merits,
but how exactly they are thinking about those merits. In Windsor,
the Justices may take up the Second Circuit’s conclusion that
classifications based on sexual orientation should be subjected to
heightened scrutiny under the Equal Protection Clause. If so, they
will likely probe issues regarding the history of discrimination
against lesbians and gay men and the political power of the groups.
Regardless of the level of scrutiny the Court ultimately applies,
even some of the more conservative Justices may be bothered by DOMA's
unique federal intervention into state policy. In Perry, the
Justices' questions and comments may not only suggest whether a
majority believes Proposition 8 to be unconstitutional but how far
such a ruling might extend. Some Justices may be interested in
limiting the case to the specifics of California while others may
prefer a broader decision that impacts marriage bans across the
country. Still others may find a middle road, analyzing laws that
provide the substantive rights and benefits of marriage under a
nonmarital designation.”
Appearing on CNN, legal analyst Jeffrey
Toobin argued that both cases break down to one simple argument: “Can
the government in giving out benefits – whether it's taxes, whether
it's marriage, whether it's child custody – can the government say
gay people get one set of benefits and straight people get another?
Can gay people get less?”
The court is expected to hand down a
ruling in June.