Section 3 reads as follows:. United States Department of Health and Human Services , 36 the First Circuit analyzed whether this section passed constitutional muster. A Hawaii district court took the latter approach. At issue in Jackson v. Not only would the Court likely strike down section 3 of DOMA , but state same-sex marriage bans also seem vulnerable if subjected to intermediate scrutiny.
While such a holding would be important for those married same-sex couples seeking federal benefits, it might have relatively little import either for other cases involving orientation discrimination or for discrimination against other minorities. The Ninth Circuit held that there was no legitimate reason for the state to withdraw from same-sex couples the right to marry when those couples would nonetheless be afforded all of the benefits of marriage through domestic partnerships.
First, more and more states are recognizing same-sex relationships. By the same token, the Perry court explained that it is not credible to restrict marriage to different-sex couples for the sake of children because members of the LGB community have parenting rights in California. Many of the reasons allegedly justifying the constitutionality of Proposition 8 have been used to provide support for other same-sex marriage bans. Thus, the Court might affirm Windsor in striking down section 3 of DOMA without specifying the level of scrutiny employed.
The Court will hear at least two cases involving LGB families this term, and the decisions may well have important implications.
It is unlikely, however, that these decisions will tell us much about whether minorities will be more likely to be successful in the future by framing their claims in terms of liberty interests rather than equal protection guarantees.
Suppose that the Court finds that same-sex marriage bans trigger intermediate scrutiny. If that is because they expressly classify on the basis of sex, then the Court will not have recognized a new quasi-suspect class but will instead merely have applied the existing jurisprudence. Even if the Court were to recognize orientation as a new classification triggering closer review, that would hardly establish that equal protection guarantees will now be the basis for a wealth of successful claims by a variety of groups.
Suppose that the Court finds that same-sex marriage is a fundamental right. Such a holding would merely suggest that a right already recognized as fundamental is not reserved for different-sex couples. That would hardly provide much justification for the assumption that individuals seeking to vindicate their rights will be able to convince the Court to recognize new liberty interests as triggering close scrutiny.
By the same token, such holdings would not bode well for expanded liberty interest protections either. Suppose that that the Court reaches the merits in one or both cases and holds that either DOMA or Proposition 8 is unconstitutional. Even if that occurs, it is not clear that this would be a great step forward with respect to orientation discrimination challenges.
This would likely not be viewed as a robust endorsement of gay equality 77 but, instead, as preserving the status quo in which some courts would feel free to strike down on rational basis grounds those statutes targeting on the basis of orientation, 78 while other courts would feel equally free to uphold such statutes by reasoning that, in their cases, there was some legitimate basis for the classification.
Introduction The U. Equal Protection v. Substantive Due Process Commentators offer differing assessments about which constitutional provisions are more likely to provide protection for minorities.
See Windsor v. United States, F. Brown, F. See Perry , S. Michael H. Gerald D. City of E. Cleveland, U. On June 26, , the U. Supreme Court issued its decision in Hollingsworth v. Perry , ruling that proponents of initiatives like Proposition 8 did not possess legal standing to defend the resulting law in federal court. Therefore, the Supreme Court vacated the decision of the Ninth Circuit, and remanded the case for further proceedings. The Ninth Circuit, on remand, dismissed the appeal for lack of jurisdiction.
This left the decision of the district court as the binding decision. Thus, Prop 8 was held unconstitutional and Governor Brown was free to permit same-sex marriages to recommence. Hollingsworth v. Perry , S. Given its ruling, the Supreme Court left the District Court's opinion — that Prop 8 violated the Fourteenth Amendment — as the final and controlling decision on the merits.
U5 L52 David Boies and Theodore B. H B65 Perry , KF H Y67 Georgetown Law Library Guides U. Windsor prevailed in the lower courts, which agreed that the law was unconstitutional. And with the United States now taking her side in the legal fight, the Supreme Court granted review last winter. To the extent that you can make any predictions based on the oral argument, Windsor and her supporters may have reason to be cautiously optimistic.
They may also have a vote from Justice Anthony Kennedy who is often regarded as the swing vote on the Court to strike down the law as well, although perhaps for a different reason. The case may have a fatal procedural flaw. In a normal case that comes to the Court, the party that lost in the lower court is the one asking the Court to review the case. But this is not, as you may have figured out by now, the average case.
Proposition 8 was a response to a decision by the California Supreme Court ordering the state to begin issuing marriage licenses to same-sex couples. A few months later, Boies and Olson filed a lawsuit challenging the ban on behalf of two same-sex couples who wanted to get married. The sponsors of Proposition 8 defended it in court, because the State of California refused. The two couples prevailed in the federal trial court and then in the U. Of course, public support for same-sex marriage has swelled significantly in the four years since Olson and Boies filed their lawsuit, and the expectations of same-sex marriage supporters have increased along with that support.
A few words about timing. All we know is that the Court is expected to issue opinions on Monday and one or more later days. Stay tuned. I was not involved in either of those briefs. Specifically, did Austin, Texas, violate the free-speech rights of advertising companies when it regulated "off-premises" business signs more strictly than "on-premises" signs?
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