This week, the Supreme Court will hear a challenge to Proposition 8, which bars same-sex couples from marrying in California, and a case challenging the Defense of Marriage Act (DOMA), which denies federal benefits to same-sex couples married under state law. Proposition 8 is the big one: Overturning it would establish a broad, constitutional right to gay marriage that could be applied nationwide. However, DOMA shouldn't be discounted: If this law, signed by former president Bill Clinton, is found to unconstitutional, federal law will not longer discriminate against legally married gay couples. My colleague Adam Serwer argues that the risk to gay marriage is in fact, "very great" in the Supreme Court, because the court could "side with marriage equality" in DOMA, but "render discrimination constitutional," by not overturning Prop 8. Read on for essential background on the Supreme Court's decision to take up gay marriage:
Which cases were originally before the Supreme Court?
The Supreme Court had the opportunity to pick up five cases that challenged the Defense of Marriage Act (DOMA), a law signed by President Bill Clinton in 1996 that prevents same-sex couples married under state law from receiving the same federal recognition as heterosexual married couples. The Supreme Court decided to hear the Proposition 8 case and Windsor v. United States, which Serwer calls, "the kind of same-sex marriage case even a conservative justice could love."
What would have happened if the Supreme Court didn't accept any of the cases?
Many gay-marriage advocates didn't want the Supreme Court to take up the Proposition 8 case. If the court had let the lower-court decision stand, same-sex couples could again get married in California after a four-year delay. The same holds true for the Diaz case, which if left alone, would allow state employees to continue to receive domestic-partner health insurance coverage for the time being.
According to Jon Davidson, the legal director for Lambda Legal, if the Supreme Court had decided not to hear any of the DOMA cases, rulings from the First and Second Circuits saying that a section of DOMA is unconstitutional would have stood. Same-sex couples married in Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont would be recognized as married when it comes to federal benefits and rights. (This won't change the fact that same-sex couples in Rhode Island can't marry, and couples in Maine can't marry until January.)
- Hollingsworth v. Perry, a challenge to Califorinia's Proposition 8, is the only case facing the high court that deals specifically with the right of same-sex couples to marry. After the anti-gay-marriage activists passed an amendment to the California constitution defining marriage as between a man and a woman. A federal appeals court then under the 14th Amendment. (This case was picked up by the Supreme Court.)
Diaz v. Brewer deals specifically with health insurance benefits for gay couples in Arizona who are state employees. Same-sex marriage is not legal in Arizona. Right now, there is a preliminary injunction that allows same-sex couples to receive domestic-partner health insurance coverage.
- Gill v. Bipartisan Legal Advisory Group of the US House of Representatives and Massachusetts v. United States Department of Health and Human Services involve challenges to DOMA in Massachusetts. The complaints deal with federal benefits denied to gay married couples, like the right to file joint income taxes.
- Windsor v. United States concerns a challenge to DOMA in New York. In this case, that the plaintiff was not able to claim an estate tax marital deduction after her spouse's death. (This case was picked up by the Supreme Court.)
- Golinski v. Office of Personnel Management is a California case involving a married federal court employee who was unable to extend health benefits to her same-sex spouse.
- Pedersen v. Office of Personnel Management is a case with a plaintiff challenging DOMA in Connecticut, as a purported violation of the 5th Amendment.