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The Marriage Cases: Legal Challenges to Prop 8 and DOMA

The 14th Amendment guarantees liberty and equal protection to every American. Do state laws prohibiting same-sex marriage violate that amendment? Is the federal government’s refusal to recognize a marriage that is legal in a state federal overreach? The U.S. Supreme Court is expected to decide the answers to these questions by the end of June 2013 in two cases related to same-sex marriage.

Professor Dale Carpenter provides a brief explanation of the two cases before the Court. In 2008, California voters passed Prop 8, which bans same-sex marriage in the state. This law is being contested on the grounds that the equality principle is violated because opposite-sex couples have rights that are denied to same-sex couples. It is also contested on the grounds that every American has a fundamental right to marry. A similar case centers on the Federal Defense of Marriage Act (DOMA) of 1996. This law limits federal recognition of same-sex marriages, thereby denying same-sex couples more than a thousand benefits otherwise available under federal law. This means that even when a couple is legally married according to the state, the federal government does not recognize the marriage.

There are many possible outcomes in both cases. In the DOMA case, for example, Prof. Carpenter argues that “there is no legitimate federal interest in denying recognition to validly married same-sex couples.” He has submitted a brief to the Court asking it to strike down DOMA on federalism grounds. But will the justices agree? What do you think about these cases?

Attorneys Debate Constitutionality, Legality on Prop 8 Case (video): A PBS News Hour debate between California Attorney General Kamala Harris and Austin Nimocks from the Alliance Defending Freedom, two attorneys who were present in the courtroom for the Prop 8 case


Debating Discrimination in Defense of Marriage Act (video): A PBS News Hour debate between Ken Klukowski, director of the Center for Religious Liberty at the Family Research Center, and Mary Bonauto, special counsel for the group Gay & Lesbian Advocates & Defenders


Proposition 8 Made Simple (video): A simple, balanced explanation of Proposition 8


Legal Analysis of DOMA and Prop 8 (video): Legal experts explain what issues are before the high court, and how the possible outcomes could have an impact in California and beyond


The Federalist Case against DOMA [article]: A Reason article on the illicit role of the federal government in state politics regarding DOMA


Making the Case for Marriage: Representing DOMA in Court [article]: The Heritage Foundation supports the constitutionality of DOMA


The Marriage Cases: Legal Challenges to Prop 8 and DOMA
The 14th Amendment guarantees liberty and the equal protection of the law to every American. When a state refuses to recognize a marriage of two people of the same sex, is it violating those principles? Or when the federal government decides not to recognize a marriage that is legal in a state, is that a federal overreach? These are the questions that are before the Court in two cases in 2013. However the Court decides the cases, they raise underlying and enduring questions about liberty that all of us should care about.
One case challenges a California State law popularly known as Prop 8, which was passed by the voters of the state in a referendum in 2008. Prop 8 amends the state constitution in California to ban same-sex marriages in that state. The California case challenges Prop 8 on two different grounds under the United States Constitution. First, it denies the principle of liberty in that past cases have determined that every American has the fundamental right to marry. And second, the challengers say that the equality principle is violated because same-sex couples are denied the status that opposite-sex couples have.
The second case is a challenge to the Federal Defense of Marriage Act, which was passed by Congress and signed by President Clinton in 1996. DOMA limits federal recognition of marriages to opposite-sex couples. This means that it denies to same-sex couples more than a thousand benefits that are otherwise available under federal law. For example, the plaintiff in the case, Edith Windsor, was presented by the IRS with a tax bill of more than $363,000 when her wife died. An opposite-sex surviving spouse wouldn’t have had to pay anything at all for inheriting wealth from her deceased spouse. Under DOMA, same-sex spouses can also be denied health insurance, immigration rights, and social security rights, among many other benefits under federal law.
So the first question in the DOMA case is what is the justification for treating same-sex couples and opposite-sex couples differently under the law? As in the Prop 8 case, this raises the question of equal treatment under the law. But there is a second important question in the DOMA case, and that is one of federalism, the proper allocation of authority between the federal government and state governments.
Edith Windsor and her wife were legally married under the laws of New York. Historically the states have had the power to define marriage. In passing DOMA, Congress claimed a power that it had never before had under our Constitution. The framers, on the other hand, thought that federalism—respecting state authority—was an important structural guarantee for the protection of individual liberty.
Decisions in both of the cases are expected by the end of June 2013. There are many possible outcomes in these cases. For example, in the DOMA case I think the Supreme Court should rule that there is no legitimate federal interest in denying recognition to validly married same-sex couples. So I filed a brief in the Court asking it to strike down DOMA on federalism grounds. But the justices may not agree, and you may have your own opinions as well. So what do you think?

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