Same-Sex Marriage Goes to the Supreme Court

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The United States Supreme Court in 2010.

Today the Supreme Court hears the first of two cases on the constitutionality of gay marriage.

The first case is Hollingsworth v. Perry, a challenge to California’s Proposition 8, the voter-approved, state constitutional amendment that banned same-sex marriage back in 2008. On Wednesday, the nation's highest court will hear United States v. Windsor, the case that will determine the constitutionality of the Defense of Marriage Act (also known as DOMA), signed into law by President Clinton in 1996.

Kenji Yoshino, professor of constitutional law at New York University School of Law, explains that there are a few potential outcomes if the Supreme Court decides to strike down Proposition 8. The Court could decide that all state bans on same-sex marriage are unconstitutional but, Yoshino says, that seems unlikely.

"I think that the Supreme Court will rule for the plaintiffs, but on…intermediate grounds," Yoshino says. In other words, Yoshino believes that the Court is more likely to rule one of three ways:

  • That the defendants do not have standing to bring the case, which would kick the case back to the district level and allow the district ruling (in which Judge Vaughn Walker ruled for the California plaintiffs) to stand.

  • That it was unconstitutional for California to grant a right (the state Supreme Court approved gay marriage in May 2008), then take it away (via the Proposition 8).

  • That the nine states that allow same-sex domestic partnerships or civil unions must allow gay marriage (in addition the the nine states that already do allow gay marriage.

Yoshino predicts the Supreme Court will strike down the Defense of Marriage Act. "The reason that [DOMA] is more vulnerable than Proposition 8," Yoshino says, "is because marriage has traditionally been an issue of state law, rather than federal law. So the 1996 Defense of Marriage Act is really a usurpation of the traditional relationship between the federal and state governments on the side of the federal government."

Yoshino points out that the Federal government under President Obama has taken a complicated approach to the Defense of Marriage Act: "They are enforcing [DOMA] but they are refusing to defend it. And I want to make clear, that this is very rare but it is not unprecedented."

Because the federal government has refused to defend it, House Republicans led by John Boehner have stepped in to do just that. "Obama is not saying that the Supreme Court shouldn’t decide this case, he’s just saying that he wouldn't defend it. And in fact Chief Roberts himself declined to defend in an affirmative action case and so this is something that occurs on both sides of the aisle."

Listen to audio from today's same-sex marriage hearings at the Supreme Court


Our Washington correspondent, Todd Zwillich, is filling in as host all this week. Follow Todd on Twitter for the latest from Capitol Hill.