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Understanding the Two Supreme Court Marriage Cases

Within the history of the United States, there have only been a few Supreme Court cases that have had the potential to change America’s moral values in a drastic fashion. In the 1973 case of Roe v. Wade, the Court altered the course of American history—for the worse—by concluding that a woman’s right to have an abortion is implicitly found within the constitutional liberty rights of the Fourteenth Amendment. In 2003, the Court again impacted the moral compass of America with its ruling in the case of Lawrence v. Texas. The Lawrence Court held that laws against sodomy violate the constitutional privacy rights of Americans, and the Court struck down Texas’s anti-sodomy laws.

When it comes to cases affecting morality, no recent cases have had more potential to impact American culture than the two marriage cases recently heard by the Court. Hollingsworth v. Perry and United States v. Windsor were argued at the Supreme Court on March 26 and 27, 2013, and if the Court follows its normal protocol, we should expect the decisions to be announced by the end of June. Since Roe, the Supreme Court has not had an opportunity to forge America’s moral values as it currently does with Hollingsworth and Windsor.

Understanding the Two Marriage Cases

Hollingsworth v. Perry is the marriage case that involved a challenge to California's Proposition 8. Proposition 8 is the voter-passed initiative that amended the California Constitution to unequivocally mandate that marriage in the state of California had to be between a man and a woman. In this case, two same-sex couples applied for marriage licenses in California, and because of Proposition 8, the state denied the couples’ requests for marriage licenses. The two couples sued the state claiming that Proposition 8 violated their Fourteenth Amendment liberty rights—the same rights that undergirded Roe v. Wade and Lawrence v. Texas decisions. At the district court level (federal trial court), the couples prevailed under the ruling of the openly homosexual judge, Vaughn Walker, and Proposition 8 was deemed to be unconstitutional.  

Despite the fact that the voters of California successfully voted to amend California’s Constitution to allow legal recognition of opposite-sex marriages only, the original defendants in the case, Governor Arnold Schwarzenegger and Attorney General Jerry Brown, responded to the lawsuit by refusing to defend the case on behalf of California. When a defendant declines to defend a lawsuit, the result is what is called “default judgment.” Default judgment means that the plaintiff that filed the suit wins the case and gets what she asked for in her complaint. In this case, the plaintiffs were claiming that Proposition 8 violated their Fourteenth Amendment rights to get married by claiming the homosexual marriage was a “fundamental right.” Since the state of California declined to defend the case, two traditional values groups intervened and stepped in the shoes of the state to defend the case.

At issue, was whether the intervening parties—the parties defending the case—had legal “standing.” Standing is the legal concept derived from Article III of the Constitution that ensures that the proper parties are parties of the lawsuit; in other words, standing ensures that there is a party to the suit that has suffered harm as a result of the other party and thus has the right to seek judicial enforcement of a right. Both the district court and the Ninth Circuit Court of Appeals upheld that the intervening parties had standing.

During oral argument at the Supreme Court, the justices spent more than half of the time that was allotted for oral argument to question the attorneys on the standing issue. Because of this, many are speculating that the Court will dismiss the case for a lack of standing. If dismissed on standing grounds, the result of Hollingsworth will be that Judge Walker’s ruling in the district court—striking down Proposition 8 as unconstitutional—will stand. The only positive point to dismissing on standing is that the Court will avoid making a determination (for the time being) of whether homosexual marriage is a fundamental liberty right under the Fourteenth Amendment.

If the Court does hold that the intervening parties have standing, then court will go to the merits of whether same-sex marriage is a constitutional right. As you know—the results of this decision have the potential to completely change American culture and disregard the voters’ intent in each of the states. On one hand, the Court could take a federalism position by refusing to regard same-sex marriages as a constitutional right; thus leaving the decision for each state’s voters to decide. On the other hand, the Court could hold that same-sex marriage is a fundamental constitutional right that is implicitly found within the Fourteenth Amendment’s liberty interests, and all of the states would be subject to recognizing same-sex marriages to avoid violating the constitution.

United States v. Windsor, the second marriage case heard by the Court in March, involved a challenge to Section 3 of the federal Defense of Marriage Act (DOMA), which provides that, for purposes of federal law and federal benefits, marriage must be between a man and a woman. In 2011, the Obama administration announced that it believed DOMA to be unconstitutional—completely circumventing Congress’s lawmaking authority—and would not defend it in this court case. The House of Representatives’ Bipartisan Legal Advisory Group voted to defend DOMA and intervened. The plaintiff, Edith Windsor, based her injury on the fact that same-sex couples do not receive the same federal tax benefits that are afforded to opposite-sex couples.

A great deal of time was also spent during oral argument in Windsor on the issue of standing. The primary issue that the court looked at, however, was whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection. Like Hollingsworth, if this case is dismissed on standing grounds, the result will be that the trial court’s judgment will stand. That means that Ms. Windsor will win her challenge against the additional tax liability she faces, and federal law would be forced to recognize her same-sex marriage. Also, just as it does in Hollingsworth, the Court has the opportunity to rule on same issue: whether same-sex marriage is a fundamental right for all.  

Will you please join us in praying for the Supreme Court as it is deciding this landmark issue? Since the Court heard the cases in March, three states (Rhode Island, Delaware, and Minnesota) and three foreign countries (Uruguay, New Zealand, and the United Kingdom) have approved same-sex marriages, raising questions about how the developments might affect the justices' consideration of the issue.

During the oral arguments, it was fairly clear that four of the justices (Justices Ginsburg, Breyer, Sotomayor, and Kagan) will vote in favor of recognizing a right to same-sex marriage and that four justices (Chief Justice Roberts, Justices Alito, Scalia, and Thomas) will likely vote for dismissal on standing grounds or will refuse to recognize that same-sex marriage is a fundamental right. The swing vote will likely come from Justice Kennedy—the author of the opinions in Romer v. Evans and Lawrence v. Texas—the two cases that have expanded same-sex rights more than any others heard by the Supreme Court. Now, more than ever, we ask for you to pray for the Court to leave this issue to the states!