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Supreme Court Considers Same-Sex Marriage

December 10, 2012

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A gay pride and an American flag cross on the bag of a pro-gay marriage demonstrator in California at a protest against Proposition 8. After a long legal battle, the Supreme Court will make the final decision on whether “Prop 8” is constitutional.

In 2013, the Supreme Court will consider two new cases that may decide the future of gay marriage. The court has never before heard a case regarding same-sex marriage, and its decision could possibly overturn state and federal law.

Every year, the Supreme Court decides which cases it will hear, and often takes on controversial issues when it is clear that lower courts, Congress and state laws are confused about how different laws relate to America’s founding legal document, the Constitution.

Who decides what marriage is?

In the case of gay marriage, the justices will hear two cases. One challenges part of a law passed by Congress and signed by President Clinton, the Defense of Marriage Act that gives tax and other benefits only to marriages between a man and a woman.

The other case disputes 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.

To date, 37 U.S. states have passed constitutional amendments or statutes that define marriage as exclusively between one man and one woman, whereas nine states and the District of Columbia recognize gay marriage.

Proposition 8

2008 was a tumultuous year for gay marriage in California. First the California Supreme Court ruled that gay and lesbian couples could marry, and couples flocked to city hall for their marriage licenses. But then California voters passed Proposition 8 in November 2008 which amended the state constitution to ban same-sex marriage.

Supporters of “Prop 8” rally in California in 2008. The referendum banned gay marriage just months after it was legalized by California courts.

Couples who had married in that brief window challenged the legality of Proposition 8 in federal court. That lower court sided with same-sex marriage , saying that Prop 8 took away a right that the state had previously given.

Now, supporters of Proposition 8 have brought the case to the U.S. Supreme Court. The question is whether the 14th Amendment to the U.S. Constitution prevents the state of California from banning gay marriage.

The first section of the 14th Amendment says that no state can “deny to any person within its jurisdiction the equal protection of the laws.”

The court could rule one of several ways on the case, each of which could have varying effects on laws throughout the country.

“The court could decide that Proposition 8 does violate the federal Constitution. That would be the broadest ruling that it could make,” said Marcia Coyle of the National Law Journal. “If the court said that the 14th Amendment does prohibit California from defining marriage as between a man and a woman, then other state [bans on same-sex marriage] would certainly be at risk, other than just California.”

Defense of Marriage Act

The other case that justices will hear challenges the Defense of Marriage Act (DOMA), a federal law that only recognizes heterosexual marriage for the purposes of all federal laws, including taxation, Social Security, health and welfare benefits.

The case involves an 83-year-old woman named Edie Windsor who was married to her female partner of 40 years. The couple lived in New York, where same-sex marriage is fully recognized. However, because of DOMA, when her partner passed away and left Ms. Windsor her estate, she had to pay $400,000 in estate taxes that she would not have been forced to pay if the marriage were between a woman and a man.

“The Defense of Marriage Act is being challenged as violating the equal protection guarantee in the Fifth Amendment,” said Coyle. “The argument is that that provision discriminates against them by treating them differently from legally married opposite sex couples.”

The Fifth Amendment states that no person can be “deprived of life, liberty or property, without due process of law.”

However, if the Supreme Court rules in favor of Ms. Windsor, that would not mean that gay marriage is legalized throughout the country. “The challenge here to DOMA really is only that this provision in DOMA is unconstitutional as applied to legally married same-sex couples,” said Coyle. “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.”

The decisions will most likely be announced in June.

— Compiled by Allison McCartney for NewsHour Extra