Supreme Court to Hear Same-Sex Marriage Cases

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Dec 7, 2012

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America’s highest court has entered the gay marriage debate.  Today, the Supreme Court announced that it would hear cases that test the rights of same sex couples, marking June 2013 for what will be a highly anticipated decision.  The legality of gay marriage has become increasingly sensitive as more and more states begin enacting law permitting homosexual unions. 

The Supreme Court has chosen to hear two cases with gay marriage as a central issue, but it is important to note that the Court may not tackle the question of gay marriage directly.  Both cases raise other legal questions that the Justices may focus on, leaving the ultimate question about whether or not the Federal Government protects homosexual marriage unanswered.

Cases at Issue

The first case will present the Supreme Court with arguments on whether or not the 1996 Defense of Marriage Act can deny tax benefits to the surviving spouse in a gay marriage.  Edith Schlain Windsor, whose spouse died in 2009 after more than 40 years as a couple, argues that she shouldn’t have to pay estate tax because the surviving spouse in a heterosexual marriage is legally exempted.  The Defense of Marriage Act came under fire recently when Federal appeals courts in Boston and New York found it Unconstitutional, saying it punishes a minority of lawfully married people without justification.

The second case is focused on California’s Proposition 8, a 2008 state referendum that made same-sex marriages illegal in the state.  Lower courts have already struck down Prop 8, leaving the Supreme Court to decide whether or not the measure is Constitutional.

Court Can Still Avoid Gay Marriage Question

Neither case requires the Court to directly address the question of whether or not the Constitution grants a fundamental right of marriage to same-sex couples.  The portion of the Defense of Marriage Act (DOMA) in question allows the government to deny Federal benefits to same-sex couples who are legally married in their state of residence.  This part of the law has been rejected by lower Federal Courts which say the Act discriminates against gay couples.  Even if the Supreme Court agrees that the Act promotes discrimination, the case will not settle whether or not states can prevent same-sex couples from getting married.  This particular challenge focuses only on DOMA’s provision that denies federal benefits, but not on the provision that allows states to deny same-sex couples marriage.

The challenge of Proposition 8 can also be met without holding that same-sex couples have a fundamental right to marriage.  The law was struck down by a federal appeals court when the court decided that California could not withdraw a right that was previously recognized.  Again, this lower ruling can be supported, and Prop 8 can be deemed Unconstitutional, by focusing a decision narrowly.  If the Supreme Court finds that California erred by denying a right that previously existed, then states that have never allowed gay marriage could continue to deny it.

The Future of Gay Marriage

Supporters of gay marriage are right to point out that the Supreme Court’s decision to hear these cases could lead to significant changes in gay rights.  Both cases open the door for the Supremes to recognize that same-sex couples have a fundamental right to marriage that cannot be discriminated against by state law.  Ultimately, however, it is important to remember that the future of gay marriage may be a little more clear by next June, but it will not necessarily be settled. 

The opportunity for more legal challenges exists, however, as more and more states are legalizing gay marriage.  The Defense Against Marriage Act has come under Constitutional fire, and, even if it does not take on the issue directly, the Supreme Court’s upcoming decision will provide guidance that allows lower courts to address the ultimate question about DOMA’s provision that allows states to ban same-sex marriage.

If the now-famous Obamacare decision provides any indication of the direction Chief Justice John Roberts wants his Court to take, expect the Justices to decide each case narrowly and leave the ultimate question about DOMA and gay rights to Congress and the states.  Justice Roberts denied the opportunity to take an ideological stand that many Conservatives expected him to take earlier this year, and, if given the chance, he will likely take the same path when it comes to gay marriage.

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