The U.S. Supreme Court has set the dates it will hear oral arguments in the two marriage equality appeals the justices agreed to hear late last year. The first of the cases Hollingsworth v. Perry, which will consider the California ballot initiative that prohibits same-sex marriage—Proposition 8—will be heard on Tuesday, March 26, with arguments expected to last for at least one hour.
In the case of Perry, supporters of Prop. 8 have challenged a ruling by the 9th U.S. Circuit Court of Appeals in San Francisco that found the voter-approved measure violates the 14th Amendment’s equal protection clause by prohibiting a state from defining marriage as the union of a man and a woman.
The case challenging the federal Defense of Marriage Act (DOMA), Windsor v. United States, will be argued on Wednesday, March 27. In Windsor, the justices will rule if Section 3 of DOMA, which establishes that marriage, for all federal purposes, is the union between a man and woman, violates the 5th Amendment’s equal protection guarantee.
Arguably the more sweeping of the two in scope, the Windsor case has been noteworthy not just in its temerity in seeking to shake the foundations of marriage’s very legal definition, but also in the number of distinguished jurists—especially those whose conservative credentials have been otherwise unimpeachable—have ruled that DOMA is unconstitutional.
The plaintiff, Edie Windsor, challenged DOMA after her longtime partner, Thea Spyer, died in 2009, and she was left with an inheritance tax obligation of $363,053 because, in the eyes of the government, she and her partner of more than 40 years were “just friends.”
Even after New York State lawmakers voted to legalize marriage equality in 2011, Windsor was still not eligible for a refund of the hundreds of thousands of dollars she had paid Uncle Sam in inheritance taxes.
In October, the 2nd U.S. Circuit Court of Appeals ruled that DOMA violates the equal protection clause and that Windsor, who is now 83, should not have had to pay an inheritance tax after Spyer’s death. Meanwhile in May, the 1st U.S. Circuit Court of Appeals in Boston—five active judges, three appointed by Republican presidents, two by Democrats—had also ruled, in an unrelated case, against DOMA’s constitutionality.
In that decision, the three-judge panel gave Congress—which had passed DOMA in 1996 with the signature of a bullied President Bill Clinton, who was eager to please moderates in an election year—an earful, reminding them that there are larger concerns than the “will” of conservative lawmakers who were eager to score cheap points with middle America at the expense of the Constitution.
“If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test.” Ouch.