Supreme Court to hear cases on marriage definition, benefits

The Supreme Court will take up in the spring two cases over the constitutionality of same-sex marriage.In orders issued Dec. 7, the court agreed to hear a case over California's Proposition 8, which bans same-sex marriage, and one out of New York over the federal Defense of Marriage Act, which defines a marriage as being between one man and one woman for federal purposes.The cases likely will be on the court's calendar for argument in March, with a ruling before the end of the term in late June. After weeks of court-watching when the petitions for review of more than half a dozen cases over same-sex marriage were on the justices' list for consideration, the orders Dec. 7 suggested the justices worked at covering multiple bases in what they granted, noted court-watchers at the Supreme Court blog, SCOTUSblog.The orders focused on two issues: how marriage is defined and whether same-sex couples who are legally married are entitled to the same kind of spousal benefits as heterosexual spouses.In each case, the court noted that it would first consider whether the parties involved have legal standing, meaning the court could toss out both cases on the basis of who brought the lawsuits and not actually address the underlying constitutional issues at all. If that happened, the court could take up other cases to get to the constitutionality.The orders also asked the parties in the New York case to first help the justices consider whether the key part of DOMA even holds, because the federal government has said it is not constitutional and has declined to defend it.DOMA, signed by President Bill Clinton in 1996, was a reaction to Hawaii's Supreme Court ruling in 1993 that the state had to show a compelling interest to prohibit same-sex marriage, leading to concerns that a subsequent challenge would make the practice legal. DOMA defines marriage as only between one man and one woman for the purposes of the federal government, including for Social Security benefits, federal programs and federal estate and income taxes.Although subsequent administrations supported DOMA in court, early in 2011, Attorney General Eric Holder announced the agency would no longer defend the law. Holder said that after review of recommendations including his own, President Barack Obama had concluded that DOMA's definition of marriage as applied to same-sex couples fails to hold up to constitutional scrutiny.‘Significant moment’Saying he prayed that the court would uphold the traditional definition of marriage, Archbishop Salvatore Cordileone of San Francisco, chairman of the Subcommittee for the Promotion and Defense of Marriage of the U.S. Conference of Catholic Bishops, said the court's decision to take the cases is a "significant moment for our nation."In a Dec. 7 statement, Archbishop Cordileone said traditional marriage between one man and one woman "is as old as humanity" and is the foundation of a just society because it protects children, "the most vulnerable among us."Nine states and the District of Columbia allow or will soon begin allowing same-sex marriage. That includes, Maryland, Maine and Washington, which passed laws approving it in November's election, while Minnesota voters defeated a referendum seeking to ban it. Thirty-one states have constitutional amendments prohibiting same-sex marriage. Many of the cases the court has been asked to hear revolve around the question of employee or survivor benefits for spouses who married in states where same-sex marriage is permitted. Other challenges relate to bankruptcy, immigration and military benefits.The cases the court accepted are: —Hollingsworth v. Perry, which asks whether the Equal Protection Clause of the 14th Amendment prohibits the State of California from defining marriage as the union of a man and a woman, as Proposition 8 does.—Windsor v. United States, in which a New York woman sued over having to pay $363,000 in federal estate taxes after the death of her wife. If she had been married to a man, she would have been exempt from the taxes.“That the court has taken these two cases suggests that it may approach the significant issue raised by the Second Circuit in Windsor — but avoided by the Ninth Circuit in Perry — regarding the level of scrutiny to be afforded sexual orientation classifications for equal protection purposes,” said Doug NeJaime, a professor at Loyola Law School who teaches Law & Sexuality and other courses.“If sexual orientation classifications merit heightened scrutiny, as the Second Circuit held, all laws that discriminate against lesbians and gay men — including state marriage prohibitions — would be suspect,” said NeJaime. “Of course, the combination of Windsor and Perry also suggests that some Justices may believe there is a material distinction between a federal law denying recognition to same-sex couples’ valid state-law marriages and a state law preventing same-sex couples from marrying.“In other words,” NeJaime added, “the Supreme Court may, on one hand, be poised to issue definitive rulings in favor of sexual orientation equality or, on the other hand, be prepared to split the difference. At the same time, the court could simply approach both issues by employing the lowest level of constitutional scrutiny and yet still find both the federal and state laws unconstitutional.”‘A chance at a fair hearing’“Every one of the numerous legal steps we have taken for the past four years has been in anticipation of this moment,” said Andy Pugno, general counsel for ProtectMarriage.com, the official proponents of Proposition 8. “Arguing this case before the Supreme Court finally gives us a chance at a fair hearing, something that hasn’t been afforded to the people since we began this fight.“We are delighted that the nation’s highest court will decide whether to uphold the will of more than seven million Californians who voted to preserve the unique definition of marriage as only between one man and one woman,” added Pugno.“Marriage between a man and a woman is a universal good that diverse cultures and faiths have honored throughout the history of Western civilization,” said Jim Campbell, among the Alliance Defending Freedom attorneys who are part of the legal defense team for ProtectMarriage.com. “Marriage expresses the truth that men and women bring distinct, irreplaceable gifts to family life. The ProtectMarriage.com legal team looks forward to advocating before the U.S. Supreme Court on behalf of the people’s right to preserve this fundamental building block of civilization,” said Campbell.“The Supreme Court has made it very clear that the age-old definition of marriage as the union of one man and one woman is constitutional as a matter of public policy,” said ProtectMarriage.com’s lead counsel Charles J. Cooper with the Cooper & Kirk law firm. “The lower court decisions in the Proposition 8 case essentially rejected all relevant Supreme Court and appellate court precedent. We are hopeful and confident that the Supreme Court will uphold its precedent.”As ProtectMarriage.com’s July petition asking that the Supreme Court review the Proposition 8 case explained, “The Ninth Circuit’s charge of anti-gay animus is…at war with its own acknowledgment that the question whether marriage should be redefined to include same-sex couples is one ‘over which people of good will may disagree….’ The Ninth Circuit’s charge thus defames over seven million California voters and countless other Americans who believe that traditional marriage continues to serve society’s legitimate interests….”The petition warned of the potential effect if the Ninth Circuit’s ruling is allowed to stand: “It is thus all but certain that the decision below, despite its professed narrowness, will in due course lead to States throughout the Circuit being forced to redefine marriage by judicial decree.”The ‘Roe’ of marriage?“Many fail to realize, this issue is not about gay participation in marriage; it is about whether it is constitutional to have an institution that united kids with their moms and dads,” said Bill May, president of Catholics for the Common Good. The author of the recently-published booklet, “Getting the Marriage Conversation Right: A Guide for Effective Dialogue,” May says people need to decide “yes” or “no” if society needs such an institution as marriage, which unites a man and a woman with each other and any children born from their union. “If marriage is redefined by the court, there will no longer be any such institution in the law, and it would become discriminatory for public and private institutions to promote it,” said May.“Any of the many cases about marriage coming to the Supreme Court, including either of these two [to be heard by the court this spring], could become the ‘Roe v. Wade’ of marriage.”Paula Doyle contributed to the story.{gallery width=100 height=100}gallery/2012/1214/marriage/{/gallery}