On Tuesday, the Supreme Court heard arguments in Hollingsworth v. Perry, involving the constitutionality of Proposition 8 (California’s controversial ban on same-sex marriage). Due to issues regarding standing (the legal right of a party to bring a suit), the real question facing the Court is likely not whether it would strike down Proposition 8, or what the broader effect of such a decision might be, but whether it is going to reach the merits of the case at all. Given the questions and comments at argument, the Court may not weigh in on the issue of same-sex marriage. We will have to wait and see.
Yesterday, in United States v. Windsor, the constitutionality of the federal Defense of Marriage Act (defining marriage as between a man and a woman) was before our highest court. During argument, Justice Kennedy indicated that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage. However, if the Court was to strike down the law based on states’ right, it would not give same-sex couples the legal right to marry under the Constitution. From questions and comments during argument, it appears unlikely that the Court would strike down the DOMA because it denies same-sex couples legal equality under the Fifth Amendment (by denying them the right to marry). It looks like the constitutionality of same-sex marriage will not be reached in this case either. The Court, although it has been dealing with gay rights cases for years, has never spelled out a specific constitutional standard for judging laws that allegedly discriminate based on sexual orientation.
Regardless of whether the Supreme Court reaches the constitutionality of same-sex marriage in Hollingsworth or Windsor, this is a matter requires clarity and guidance from our legislature. Until that happens, we must look to our courts to fill in the gaps. These two cases are the first of many more to come. Check our blog for updates.