After three months of deliberation, the Supreme Court of the United States is due to give rulings on the cases of Windsor v. United States and Hollingsworth v. Perry this Thursday June 27. These two cases mean very different things for the fate of same-sex marriage in America.
Windsor v. United States is a case that challenges the constitutionality of The Defense of Marriage Act, or DOMA. The case was brought forth after Edith Windsor of New York lost almost $400,000 in federal estate taxes just because she was married to a woman instead of a man. Windsor legally married her partner of 40 years, Thea Spyer, in Canada in 2007. When Spyer died a few years ago, Windsor inherited the entire estate, but that estate was subject to taxes that would not have applied to a heterosexual couple.
In lower courts, DOMA was deemed unconstitutional because it violates the Fifth Amendment’s guarantee of equal protection of the laws with regard to same-sex couples married legally in states that allow same-sex marriage. Although Spyer and Windsor were married in Canada, New York is one of the 12 states in which same-sex marriage is legal.
Now in the Supreme Court, this case will decide how the federal government will treat legal same-sex marriages. DOMA could either be supported by the Supreme Court or overturned. If DOMA is overturned, same-sex couples already in civil unions will be afforded the same rights as married heterosexual couples in federal laws and programs such as Social Security benefits, income tax, estate tax, and immigration. These rights will also apply to future, legal, same-sex marriages.
If the law is upheld, the federal government will be under no obligation to afford same-sex couples the same rights as different-sex couples because the federal government will continue to define marriage as a union between a man and a woman.
There is a chance that the case could also be punted from the Supreme Court for what’s called “lack of standing.” The Executive branch is not defending the law; it is defended by House Republicans, an organization funded by the House GOP. In order for a case to appear in court, there must be proof that some kind of harm was done to the plaintiff. If this can’t be proven, the case will return to lower courts.
Also being decided this week is Hollingsworth v. Perry which challenges the legality of Proposition 8, the law that banned same-sex marriage in California. Under Prop. 8, same-sex marriages are verboten, but civil unions are allowed. This case is significantly more complicated than Windsor v. United States because there are more potential rulings the Supreme Court can make. The first is that Proposition 8 will be upheld and same-sex marriage will continue to be illegal in California. Conversely, Proposition 8 could be overturned and same-sex marriage will become legal in California.
Those two rulings are easy enough, but here’s where it gets a little more complicated. California is not the only state that allows homosexual couples to enter civil unions, but not marriage. In fact, it is one of eight states including Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island. The courts could create what’s called an “eight-state solution” whereby gay marriage would be made legal in all states that currently allow civil unions. Obama has publicly stated his support of this outcome.
The Supreme Court could also rule that marriage equality is a constitutional right across America. However, there is no chance that the Supreme Court can ban same-sex marriage in places that it already exists.
Finally, like Windsor v. United States, Hollingsworth v. Perry could be punted from the Supreme Court for want of standing, which would likely result in the overturning of Proposition 8 in California.
The Supreme Court of the United States has until June 27th to reach a decision on these two very important cases.