The Society for the
Study of Social Issues

Q&A on Marriage Equality and the US Supreme Court

14 December 2012


Why is it important for the Supreme Court to rule on marriage equality?
There a currently around 120,000 married same-sex couples in the US who have tied the knot in one of nine states and the District of Columbia where same-sex marriage is allowed. The other 41 states do not allow same-sex marriage and many of them have passed constitutional amendments banning it. This means that spouses that travel to other states do so knowing that they will not be recognized as such in basic areas of life such as hospital visits or buying property. At the federal level, a law called the Defense of Marriage Act (DOMA) gives approval of discriminatory state policies on same-sex marriage and also precludes access to federal benefits that heterosexual couples have in social security benefits and taxes.

What cases did the US Supreme Court decide to hear on the right to marry in the US?
Last Friday the United States Supreme Court announced that it would hear arguments for two cases relating to the right of same-sex couples to be married. One of them is United States v. Windsor, a case claiming that DOMA is unconstitutional in that it takes away legal benefits to married couples simply because they are of the same sex, thus violating the right to equal protection under the law. The plaintiff, Edith Windsor, lost $363,000 of inheritance from her late spouse, Thea Spyer, in 2009 because the marriage was not recognized. According to DOMA, only marriage between a man and a woman is valid for federal tax benefits, pensions, and health insurance. The second case that the Supreme Court will hear is Hollingsworth v. Perry, a case which found Proposition 8, a ballot initiative banning same-sex marriage in California, to be unconstitutional for similar reasons to DOMA.

When will they hear the cases?
March 2013 with a verdict expected in June 2013.

Why did the Supreme Court make this decision now?
In the elections this November, three new US states passed ballot initiatives recognizing same-sex marriage (bringing the total to 9 plus the District of Columbia), and national polls show that more people favor marriage equality than not. This trend suggests that it is only a matter of time before marriage equality becomes federally recognized, but it is unclear whether Supreme Court will be swayed at this point in time.

What decisions could the Court make?
The liberal justices, Ginsburg, Breyer, Sotomayor and Kagan seem likely to vote in favor of marriage equality whereas Justices Scalia, Thomas, and Alito will probably vote against. Both Justice Roberts and Justice Kennedy have been widely seen as the deciding voters in the case. But, however the final vote tallies up, the cases under review will not address whether there is grounds to affirm the right of same-sex marriage in the US Constitution. Rather, the chosen cases are such that a ruling in favor of marriage equality can only affirm that the grounds on which anti-gay marriage arguments have been framed in DOMA and in Proposition 8 are unconstitutional. The United States v. Windsor case introduced the requirement of “heightened scrutiny”, and a ruling by the Supreme Court could also set this as the standard that all courts must follow. Heightened scrutiny says that the onus will be on courts to justify any decisions that discriminate against the right of same-sex couples to be married.

Further reading

 Alex Ingrams
SPSSI Policy Coordinator

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