And it has all come down to this. Over four years ago, superlawyers Ted Olson and David Boies – who opposed each other in the Bush v. Gore presidential election case – came together to challenge California’s ban on same-sex marriage on behalf of two California couples. In the next few days, the Supreme Court is finally expected to rule on whether that ban (known as Proposition 8) and the federal Defense of Marriage Act – which limits marriage to a union between a man and a woman for purposes of federal law – are constitutional. But then again, it might not . . . . So let’s talk about the same-sex marriage cases and what the Court could do with them in Plain English.

Let’s start with United States v. Windsor, the challenge to the Defense of Marriage Act (DOMA), which may wind up as the less complicated of the two. (More background on the case can be found in my earlier posts here, here, and here.) And let’s be clear on what this case is not about: it is not about whether there is a constitutional right to same-sex marriage. Instead, it is about whether Congress can treat married same-sex couples differently from married opposite-sex couples in federal laws and programs like Social Security benefits, immigration, and income taxes.

Congress passed DOMA in 1996, and then-President Bill Clinton signed it into law. The Clinton, Bush, and Obama administrations all defended DOMA against court challenges. But in 2011, President Obama changed his mind and concluded that DOMA violated the rights of same-sex couples, so House Republicans stepped in to defend the law.

The challenge to the constitutionality of DOMA now before the Justices was filed by an octogenarian from New York, Edith (“Edie”) Windsor, who in 2007 married Thea Spyer, her partner of over four decades, in Canada. When Spyer died a few years ago, Windsor inherited her entire estate, but the estate also came with a federal estate tax bill of nearly four hundred thousand dollars that Windsor would not have had to pay if she had been married to a man. Windsor prevailed in the lower courts, which agreed that the law was unconstitutional. And with the United States now taking her side in the legal fight, the Supreme Court granted review last winter.

To the extent that you can make any predictions based on the oral argument, Windsor and her supporters may have reason to be cautiously optimistic. The Court’s four more liberal Justices – Justices Ginsburg, Breyer, Sotomayor, and Kagan – seemed to be squarely on her side. They may also have a vote from Justice Anthony Kennedy (who is often regarded as the swing vote on the Court) to strike down the law as well, although perhaps for a different reason. Generally a staunch supporter of states’ rights, he seemed troubled by the idea that with DOMA Congress was trying to regulate marriage – which, he seemed to indicate, has traditionally been the role of the states.

But there’s a chance that the Court might not even get to the question whether DOMA is constitutional at all. The case may have a fatal procedural flaw. In a normal case that comes to the Court, the party that lost in the lower court is the one asking the Court to review the case. But this is not, as you may have figured out by now, the average case. Windsor and the United States won in the lower court, by getting a ruling that DOMA is unconstitutional. And to make things even more complicated, usually it is the federal government that appears in court to defend the constitutionality of federal laws, but the government isn’t doing that here; House Republicans are doing it instead.

The fate of California’s Proposition 8, before the Court in Hollingsworth v. Perry, seems murkier than DOMA’s. Proposition 8 was a response to a 2008 decision by the California Supreme Court ordering the state to begin issuing marriage licenses to same-sex couples. Before the end of that year, California voters had passed Proposition 8’s ban on same-sex marriage. A few months later, Boies and Olson filed a lawsuit challenging the ban on behalf of two same-sex couples who wanted to get married. (My earlier “Plain English” posts on the case are available here, here, here, and here.)

The sponsors of Proposition 8 defended it in court, because the State of California refused. The two couples prevailed in the federal trial court and then in the U.S. Court of Appeals for the Ninth Circuit, with the latter holding that Proposition 8 was unconstitutional because it took the previously granted right to marry away from gays and lesbians just because people didn’t like them.

There is a threshold question of “standing” that piqued the interest of several Justices – the Chief Justice and the Court’s four more liberal Justices in particular – who seemed inclined at oral argument to hold that the sponsors of Proposition 8 lacked the legal right to defend it in court. Justice Kennedy, who had recently suggested that the Court was deciding too many hot-button issues that should be decided by the legislature instead, seemed skeptical about a potential problem with the sponsors’ “standing” but offered another path to avoid deciding whether Proposition 8 violates the Constitution: the Court could simply dismiss the case on the ground that it had made a mistake in taking it on.

The one thing that didn’t seem likely after the oral argument was what some supporters of same-sex marriage had long feared: a decision holding that the state’s ban on same-sex marriage is constitutional. As I explained in an earlier post, some gay rights groups had been irked by Boies and Olson’s decision to bring the Proposition 8 case at all; that split reflected a concern that the country wasn’t ready yet for same-sex marriage, and that a ruling upholding Proposition 8 would be a huge setback for the cause. Of course, public support for same-sex marriage has swelled significantly in the four years since Olson and Boies filed their lawsuit, and the expectations of same-sex marriage supporters have increased along with that support. And so it will be more than a little ironic if the same people who once feared a ruling on the merits will now be disappointed that they won’t get one.

A few words about timing. As we have explained in a response to our readers’ frequently asked questions, the Court does not announce what opinions it will release on any particular day. All we know is that the Court is expected to issue opinions on Monday and one or more later days. We’ll have a lot more certainty (about logistics, if not the future of DOMA and Proposition 8) soon. Stay tuned . . . it’s going to be a historic week.

Disclosure: Tejinder Singh of the law firm of Goldstein & Russell, P.C., in which I am a partner, was among the counsel on an amicus brief filed by international human rights advocates in support of the respondents in Perry, while the firm’s Kevin Russell was among the counsel on an amicus brief filed by former senators in support of Edith Windsor in Windsor.

I was not involved in either of those briefs.

Recommended Citation: Amy Howe, Waiting on Proposition 8 and DOMA decisions: In Plain English, SCOTUSblog (Jun. 23, 2013, 10:16 AM), https://www.scotusblog.com/2013/06/waiting-on-proposition-8-and-doma-decisions-in-plain-english/