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The Supreme Court Hears Arguments on Proposition 8 and DOMA

By Frank Gulino

On March 26 and 27, 2013, the U.S. Supreme Court heard oral arguments in cases that give the Court an opportunity to render a definitive ruling on the right of same-sex couples to marry. In Perry v. Brown, 671 F.3d 1052 (9th Cir.), cert. granted sub nom. Hollingsworth v. Perry, 133 S. Ct. 786 (2012), the Court agreed to hear the case in which lower courts struck down Proposition 8, the ballot initiative that' amended California's Constitution to define marriage as the union of a man and a woman. In Windsor v. United States, 699 F.3d 169 (2d Cir.), cert. granted, 133 S. Ct. 786 (2012), the Court agreed to hear one of several cases around the country in which lower courts struck down Section 3 of the federal Defense of Marriage Act (DOMA), which limits the definition of marriage to heterosexual unions for purposes of federal law. See DOMA ' 3 (codified at 1 U.S.C. ' 7).

But while the Court agreed to ' and did ' accept briefs and hear oral arguments in both Hollingsworth and Windsor, there is a possibility that the Justices will not weigh in on the merits of the same-sex marriage issue in either case. In both matters, the Justices asked the parties to brief and argue questions about the standing of the petitioners, and in Windsor, they also asked whether the Court even has jurisdiction under Article III of the Constitution to determine the case. Then, when counsel appeared before the Court in March, the Justices insisted on hearing arguments that addressed the standing issue before they would take argument on the merits. If ' as some believe will happen ' the Justices decide that the petitioners have no standing, or if they determine that the Court has no jurisdiction, there would be no ruling on the merits concerning the constitutionality of Proposition 8 or DOMA when decisions are handed down in June. That, in turn, would let stand the lower court rulings that struck down Proposition 8 and DOMA as unconstitutional.

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