House GOP leaders defend DOMA (UPDATED)

Lyle Denniston Reporter

Posted Tue, January 22nd, 2013 6:41 pm

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Arguing that the federal government has the same power as state governments do to define marriage, the Republican members of the House of Representatives’ leadership told the Supreme Court on Tuesday that the 1996 Defense of Marriage Act does not attempt to exclude anyone from government benefits but seeks only to define what marriage means under federal laws and programs.   It means, as the Act says, that marriage for all federal purposes is a union between one man and one woman.

Equality of Marriage, Same Sex Marriage, US Supreme Court

William Eskridge and Hans Johnson

For almost two generations, lesbian, gay, bisexual, and transgender (LGBT) persons have demanded equal treatment from the state for their committed relationships. For most of that period, American government has denied such claims, and leading politicians have disparaged them. In 1996, for example, Congress and President Clinton enacted the Defense of Marriage Act (DOMA), the most sweeping governmental discrimination against gay people in American history. When state judges have recognized marriage equality under state constitutions, there has been a much-noted backlash against such rulings. One example was California’s Proposition 8, which in 2008 overrode marriage equality through a voter initiative amending the state constitution.

Same Sex Marriages - Article III -US Supreme Court

Understanding standing: The Court’s Article III questions in the same-sex marriage cases (VII)

By Marty Lederman

On March 26 and 27, the Court will hear oral argument in the same-sex marriage cases, Hollingsworth v. Perry (the challenge to California’s Proposition 8) and United States v. Windsor (the challenge to Section 3 of the federal Defense of Marriage Act).  The first briefs in the cases will be filed tomorrow, on January 22. 

If the Court were to hold that the petitioners in Hollingsworth v. Perry – the Proposition 8 initiative sponsors — do not have Article III standing to appeal, what then?  What would become of the judgments below, and of Proposition 8 more broadly?

The Supreme Court presumably would reverse and vacate the judgment of the U.S. Court of Appeals for the Ninth Circuit, since the Proposition 8 proponents were also the only parties to appeal to that court from the district court judgment.  If that were to happen, the Ninth Circuit’s opinion would no longer have precedential effect that would govern future cases challenging California’s (or any other state’s) refusal to recognize same-sex marriages.  (In any event, it is likely the court of appeals will next consider the issue of same-sex marriage not in a California case but instead in a case coming up from Nevada.  Because the prohibition in Nevada law does not reverse a previous right to same-sex marriage in that state, the rationale of the Ninth Circuit’s opinion in Perry would not be directly applicable to the Nevada case, regardless of whether the Perry decision retains any precedential value.  That Nevada case will instead require the court to decide whether the Fourteenth Amendment permits Nevada to afford same-sex couples all of the benefits and responsibilities of marriage (under the moniker of “domestic partnerships”), but to deny them the status of state-sanctioned “marriage” itself.)