A Lengthy, Plain English Guide to The Supreme Court Rulings on Marriage Equality

So you may have heard that the Supreme Court of the United States (commonly abbreviated SCOTUS) issued their opinions on two very famous and heavily-watched cases: United States v. Windsor, and Hollingsworth v. Perry.

But first, some background. DOMA, a.k.a The Defense of Marriage Act, is a law that was enacted by the 104th Congress in 1996 seeking to ‘define and protect the institution of marriage’ by declaring that the federal government will only apply marriage benefits to marriages between a male and female. It was signed into law by President Clinton. In 2007, New York residents Edith Windsor and Thea Spyer were wed in Canada. When Thea Spyer died in 2009 and left her entire estate to Edith Windsor, Windsor was forced to pay $363,053 in federal taxes because they were not married in the eyes of the federal government, thanks to DOMA, so the “estate tax exemption” (basically, when someone dies and leaves their estate to their spouse, the surviving spouse doesn’t have to pay a tax for the transfer of the estate) for surviving spouses did not apply to them. Windsor filed a lawsuit against the federal government, claiming that she should receive a refund for the tax she had to pay, because they were married. Legally, she was asking the Supreme Court to decide whether or not the Defense of Marriage Act was unconstitutional, because that was the heart of her problem.

Normally in a suit against the federal government concerning the constitutionality of a law, the administration of the current President is supposed to defend the United States and the law in court (this is usually done by the Attorney General, under the Department of Justice). However, in an unusual turn of events, Obama declared that his administration would refuse to defend DOMA, because he disagreed with it and believed it to be unconstitutional. He was still required to enforce it (the President obviously can’t choose which laws he and the citizens are going to obey), but he asked the Department of Justice (I’ll abbreviate DoJ) to stop defending it, which just means they wouldn’t fight for it in court.

With no one defending DOMA, John Boehner authorized BLAG (The Bipartisan Legal Advisory Group), which is a group of Representatives from the House that directs the House’s Office of General Counsel (their lawyers) to take the place of the DOJ and defend DOMA in court. This is important to understand when we look at the ways the Supreme Court could have decided United States v. Windsor. As the Windsor lawsuit worked its way through the court system, questions were raised several times about the legality of BLAG stepping in for the Department of Justice. Imagine for a moment that you were in court defending yourself from a charge of theft, or something. The prosecutor believes there isn’t any evidence showing you committed a crime, so he declines to charge you, but a random person steps in and decides to take his place because they want you to be punished (a bit far-fetched as an example, I’ll admit, but it’ll do). They can’t do that, because they don’t have the legal authority and jurisdiction to prosecute you. That’s basically one of the questions that came up in this case: Can BLAG really just step in for the DoJ if the DoJ refuses to defend the government in a case? Do they have that authority to represent the federal government?

Cases often take several years to work their way through the Supreme Court. I’m not going to go through the full procedure here, because that would be several more pages and much more legal speak (the Latin alone would give you a headache, if I haven’t already). On March 27th, 2013, the nine justices of SCOTUS heard oral arguments from both sides about the constitutionality of DOMA. The justices can also ask other questions pertaining to the case, and both sides will typically argue a point for each question. Among the key facts mentioned in the oral arguments was a study by the General Accounting Office that revealed that, as of December 2003, there are over 1,138 federal provisions that look at marital status as a factor. Most of these were benefits that the federal government gives to married couples, like the estate tax exemption. That means that same-sex couples were being denied over a thousand benefits because of DOMA.

There were three possible outcomes for the DOMA case:

  • Strike Down: The Supreme Court might decide to declare all or part of DOMA unconstitutional, which would mean that it (or certain parts of it) would not longer be a law. In the DOMA case, they were asked to review the constitutionality of Section 3 of DOMA specifically, which is the section that declares that marriage is only between a man and woman in the eyes of the federal government.
  • Uphold: The Supreme Court might instead decide that DOMA is constitutional, so the law would still be in effect.
  • Decline to rule: The Supreme Court might declare that they cannot rule on this case because it was not properly defended. This would mean that the court believes that BLAG should not have stepped in for the DoJ. If they declined to rule, the case would be sent to a lower court to be decided.

It’s important to know that the court can make each decision in a variety of ways. They can be narrow, applying only to the specifics of a case. They can instead be broad, applying to cases with similar questions and circumstances. If the court struck down DOMA, they might declare that the federal government cannot deny benefits to same-sex married couples without violating the Equal Protection clause of the Constitution (Fourteenth Amendment, Section One: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”). That would mean that any married same-sex couple would receive benefits from the federal government as long as the marriage was done in a state where same-sex marriage was legal. They also might decide another way: a federal ban on same-sex marriage recognition is unconstitutional under the Equal Protection clause, so same-sex marriage is legal and anyone same-sex couple can get married in any state. This would be very unlikely because it would be a very broad ruling, and this court tends to rule on the conservative side.

Now, as you can see from all the buzz today, the Supreme Court decided to strike down DOMA. They did not declare same-sex marriage a right to all citizens, though, so the government will give benefits to those same-sex couples that were married in states that recognize same-sex marriage.



Now onto Proposition 8. In the 2008 elections, there was a ballot initiative in California that asked the voters if they believed that California should only recognize marriages between a man and a woman. This ballot initiative was a response to the California Supreme Court’s (I’ll abbreviate to CSC) ruling in May 2008 that bans on same-sex marriage were illegal under Article 1, Section 7 of the California Constitution. That CSC ruling was a response to two same-sex marriage bans, one in 1977 by the state legislature, and one by voters in 2000 (Proposition 22, which was worded exactly the same as Proposition 8).

Basically, after 1977 same-sex couples could not marry in California. However, if same-sex couple were legally married elsewhere, that marriage would be recognized in California. In 2000, Prop 22 banished recognition in California of any same-sex marriage. In May 2008, same-sex marriage was declared a right by the CSC until voters again barred it in November with Prop 8. In 2009, the CSC ruled in Strauss v. Horton that Prop 8 was lawful, but any same-sex marriages done before it was enacted were valid. So after that ruling, some same-sex couples were considered married in California, and some were not. Talk about confusing and unequal!

Several same-sex couples in California joined together to sue various representations of the California government regarding Prop 8. On August 4, 2010, District Court Judge Vaughn Walker ruled that Prop 8 violated the Due Process and Equal Protection clauses of the Fourteenth Amendment of the US Constitution. At this point, same-sex marriage would have become legal again in California, but Walker’s ruling was appealed and the judgment was stayed pending that appeal (meaning it wouldn’t take effect until the appeal was dealt with). The appeal went to a higher court (the Ninth Circuit, which is a court lower than the SCOTUS) and was upheld (meaning they ruled that Judge Walker’s ruling was correct). It was appealed again, which took it up to SCOTUS. On December 7th, 2012, SCOTUS agreed to take the case. Oral arguments were heard on March 26th, 2013.

There were several possible rulings from SCOTUS on the Prop 8 case:

  • Strike down Prop 8, because all marriage bans are unconstitutional. This would result in same-sex marriage legality in all 50 states. Basis for decision: Equal Protection clause, Due process clause
  • Strike down Prop 8, because civil unions and domestic partnerships are separate and unequal. This is known as the “seven-state ruling”, because it would force the seven states that currently allow civil unions and domestic partnerships to recognize same-sex marriage instead. That would mean 19 states would allow same-sex marriage. Basis for decision: Plessy v. Ferguson precedent, Equal Protection clause
  • Strike down Prop 8, because a state can’t eliminate marriage equality. This would say that if a state recognizes same-sex marriage, it cannot later decide to not recognize same-sex marriage. Same-sex marriage would return only to California in this case. Basis for decision: Equal Protection clause, Due process clause
  • Uphold Prop 8. This would say that states have the right and discretion to ban or permit same-sex marriage. Judge Walker’s ruling would be overturned, and same-sex marriage would be banned in California.
  • Decline to rule, because the Prop 8 proponents don’t have standing. This would say that those who appealed the rulings to bring the case up to the Supreme Court do not have the legal ability to do so, because they had no legal right to defend the law. In this case, the lower court ruling by Judge Walker would stand, and same-sex marriage would return to California.
  • Decline to rule, because it should not have granted review. I don’t understand this possibility completely, but I believe it has to do with the court only reviewing cases from district courts that have to do with redistricting and similar types of cases, so it should not have granted review to this because it did not pertain to redistricting. In this case, the lower court ruling by Judge Walker would stand, and same-sex marriage would return to California.

SCOTUS also announced their ruling on Prop 8 today. They chose to decline to rule, because the proponents of Prop 8 don’t have standing. So the decision only affects California, and the lower court ruling by Judge Walker stands. Same-sex marriage is legal once and for all in California!



If you’ve stuck with me thus far, I applaud you. I know this was probably really confusing and hard to follow, so if you’ve still got questions, send them my way and I’ll try to correct this post to make it easier to understand.

My ask box can be found at http://austinjosephanderson.tumblr.com/ask, or you can tweet me at @ajanderson69.

You can read the full text of the SCOTUS rulings here:

United States v. Windsor

Hollingsworth v. Perry

Note: I am not a lawyer, so I may have missed some important information, mixed up something, or said something completely incorrect. If so, my apologies. This is my best understanding of the history of these two cases, albeit somewhat reduced to save you some time. If a mistake is reported to me, I will do my best to fix it. I tried writing this as plainly as I could think about it, but I can’t guarantee that it won’t be confusing to those who don’t follow politics or understand legal speak. That is why I really recommend that you ask me any questions you still have, so I can explain it in a different way and make it more understandable for everyone else.

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