TOPICS > Politics

Supreme Court Agrees to Review Laws Banning Same-Sex Marriage

December 7, 2012 at 12:00 AM EDT
The Supreme Court announced plans to review challenges to two laws regarding same-sex marriage: a California state law and the federal Defense of Marriage Act's provision, which both define marriage as between a man and a women. Margaret Warner looks at what's at stake with National Law Journal's Marcia Coyle.

JUDY WOODRUFF: The U.S. Supreme Court announced today that for the first time in its history, it would review the contentious issue of same-sex marriage.

For more on the story, we turn to Margaret Warner.

MARGARET WARNER: The justices agreed to hear arguments in two cases.

One is California’s constitutional ban on same-sex marriage, adopted by voters as referendum Proposition 8 in 2008. It was challenged on grounds that gay citizens have the same constitutional right to marry as heterosexuals. The justices will also review a provision of the federal Defense of Marriage Act, or DOMA.

That deprives legally married gay couples of federal benefits that are available to heterosexual couples.

Same-sex marriage is legal or will be soon in nine states and the District of Columbia. But 31 other states have amended their constitutions to bar gay unions.

Here with us to explain today’s decisions and where they could lead is Marcia Coyle of The National Law Journal.

Welcome back, Marcia.

MARCIA COYLE, The National Law Journal: Thanks, Margaret.

MARGARET WARNER: So, is it fair to say, first of all, that the court’s decision to hear these first two cases in itself a momentous decision?

MARCIA COYLE: Absolutely.

A number of gay rights organizations, particularly as it relates to the federal Defense of Marriage Act, have been working towards that point. And, yes, whatever the court says will probably — if it reaches the merits of these cases, will probably be extremely important.

MARGARET WARNER: Now, let’s take them one by one.

Let’s take Prop 8 in California first. Remind us briefly of how what started out as a state issue ended up in the Supreme Court.


Well, the California Supreme Court a number of years ago ruled that same-sex marriages were constitutional under its state constitution. Voters disagreed by passing Proposition 8 in 2008 banning those marriages.

Proposition 8 was challenged by gay and lesbian couples who were represented by former opponents Ted Olson and David Boies. It ultimately reached the federal appellate court, which found that Proposition 8 was unconstitutional because it took away a right once given. And it did that on the basis of animus. So it was…

MARGARET WARNER: Animus toward gay people.

MARCIA COYLE: Towards, right, homosexuals, right.

So it was the proponents of Proposition 8, the supporters, who brought the case to the U.S. Supreme Court.

And they asked the Supreme Court whether the 14th Amendment of the U.S. Constitution prohibits California from defining marriages as between a man and a woman.

MARGARET WARNER: And so how sweeping are the issues then that the court could rule here or must rule on here?

MARCIA COYLE: Well, the court has a number of options with this particular challenge.

The court could simply affirm the lower federal appellate court, which would leave that ruling in place, the Proposition 8 was unconstitutional. It would only affect California. It was a narrow ruling. It wouldn’t affect any other state or states’ laws.

The court could decide that Proposition 8 does violate the federal Constitution. That would be the broadest ruling that it could make. And that would possibly — well, if the court said that the 14th Amendment does prohibit California from defining marriage as between a man and a woman, then other state laws would certainly be at risk, other than just California.

MARGARET WARNER: So, you mean even the 31 states that have put in their own state constitutions, as Prop 8 tried to do, could be affected potentially if the ruling was very sweeping?

MARCIA COYLE: That’s right, exactly.

MARGARET WARNER: So now let’s go to the Defense of Marriage Act case. And this came out of New York.

First of all, explain how the Defense of Marriage Act works, and how did this one case involving, I gather, an 83-year-old woman named Edie Windsor raise the issues?


Well, the challenge here is to a provision in the Defense of Marriage Act, Section 3. And that defines for all federal purposes marriage as between one man and one woman. And by doing that, it affects more than 1,000 federal laws, everything from tax laws to Social Security and health and welfare benefits.

The Defense of Marriage Act was challenged by Edie Windsor from New York. She had a partner for over 40 years. They were married in 2007 in Canada. New York recognized their marriage. When Ms. Windsor’s partner, her spouse, died, her spouse left her entire estate to Edie Windsor.

Because of the Defense of Marriage Act, Edie Windsor was left with almost a $400,000 federal estate tax that someone who was the spouse of an opposite sex couple would not have had to pay. So, there, the Defense of Marriage Act is being challenged as violating the equal protection guarantee in the Fifth Amendment.

MARGARET WARNER: And how sweeping — if the ruling were in favor of Edie Windsor, how widely would that apply nationwide?

MARCIA COYLE: Well, the challenge here to DOMA really is only that this provision in DOMA is unconstitutional as applied to legally married same-sex couples.

The argument is that that provision discriminates against them by treating them differently from legally married opposite sex couples. So if the court found in favor of Edie Windsor, as the lower federal appellate court here did, it wouldn’t affect any state’s law that prohibits same-sex marriage.

So this is more of a yes-or-no question. There aren’t as many options as there are with the California Prop 8 case for the court.

MARGARET WARNER: Very briefly, the court did also raise so-called standing issues in each one. Is it fair to say that, if they rule on these standing issues, they could be incredibly narrow rulings?

MARCIA COYLE: They could.

The standing questions have to do with whether parties, including the United States government, are properly before the court in these cases. If the court finds that they are not properly before them, the court will never even get to the merits. The cases will be dismissed.

MARGARET WARNER: Marcia, thank you so much.

MARCIA COYLE: My pleasure, Margaret.