This week, the U.S. Supreme Court considers two different yet equally powerful cases in which the justices will attempt to define for this generation just what it means to be married.
On Tuesday, March 26, the high court heard arguments in Hollingsworth v. Perry, the case concerning the constitutionality of Proposition 8, California’s ban on same-sex marriage. On Wednesday, March 27, the justice heard arguments in United States v. Windsor, the challenges of the constitutionality of a section of the 1996 federal Defense of Marriage Act (DOMA).
While both cases are landmark in their importance to the future of gay rights, the Prop. 8 case, Hollingsworth, could result in both changes to the law and the status of LGBT Americans, a Brown v. the Board of Education for LGBT rights.
In the case of Hollingsworth, the Supremes have an opportunity to decide on the question of whether same-sex couples have a constitutionally-protected right to marry.
The DOMA case, Windsor, is far more limited in its scope. It doesn’t ask who has the right to marry, but rather whether legally-married same-sex couples should have access to the same federal benefits as married heterosexual couples.
In 2008, after the California Supreme Court granted gay couples the right to marry, voters passed Prop. 8, prohibiting same-sex marriage. That meant that voters took away a right that a court had already established exists. Subsequent federal courts have ruled Prop. 8 to be unconstitutional.
The brief challenging Proposition 8 argues that the voter-approved law is unconstitutional “because it denies gay men and lesbians their fundamental right to marry without furthering a legitimate—let alone a compelling—state interest.”
Time and again, the Supreme Court has ruled that marriage is a fundamental right, and the court has never limited that right to those who choose to procreate. The brief says that the California law was lack “enacted solely for the purpose of making gay men and lesbians unequal to everyone else,” a violation of the Constitution.
Additionally, the Obama Administration filed its own brief arguing in support of protecting same-sex marriage in California and the eight other states that recognize civil unions and domestic partnerships.
Defenders of Proposition 8 argue that the Equal Protection Clause of the Constitution’s 14th Amendment does not require California to redefine marriage to include gay couples.
How will the justice rule? On the fuzzy end of the lollipop, they might decide that the supporters of Prop. 8 do not have legal standing to challenge the California law (disliking gays not being considered enough of a “compelling interest”), and send the case back to the lower courts.
They might also conclude that their decision only applies to California, rendering the decision less sweeping than LGBT rights supporters might wish.
But if the Supremes decide that it’s time to “take out the trash,” they could rule that—nationwide— marriage is a protected right for same-sex couples. It’s a long way to June, when the ruling is likely to be handed down.