Supreme Court will hear both Prop 8 and DOMA cases

December 7, 2012

Surprising virtually everyone, the US Supreme Court announced today it will grant a review of the Defense of Marriage Act (DOMA) and California’s Proposition 8 later this term.

The move could have far ranging social, economic and regulatory implications for the country, as well as for same-sex families.

According to many observers, today's announcement makes for a moment of great risk and opportunity for supporters of marriage equality.

While support for gay marriage is broadening in society and at the ballot box, which makes proponents of the judicial solution nervous about convincing a deeply divided court that sexual minorities are politically powerless.

Rep. Adam Schiff release the following statement after the Supreme Court announced it will take up marriage equality this term, hearing both a case stemming from California's Proposition 8 and a case from New York challenging the constitutionality of the 1996 Defense of Marriage Act:

"With the Supreme Court’s decision to hear arguments on the constitutionality of California’s Proposition 8 which defines marriage as exclusively between a man and a women, I hope we have taken another step towards guaranteeing marriage equality under the law.

"I hope that the Court upholds the decision by the Court of Appeals, finding that Prop 8 was unconstitutionally discriminatory towards same-sex couples who simply want to exercise their basic human right to marry the person of their choosing. 

"I also hope the Supreme Court strikes down the Defense of Marriage Act, which has prevented many couples from enjoying the full rights of marriage.

"I look forward to the day when the right of any couple to marry is guaranteed everywhere in the nation.”

According to data from the Williams Institute, “Given that multiple circuit courts have found DOMA’s Section 3 unconstitutional, the Court has an important opportunity to provide nationwide answers regarding the validity or invalidity of this federal statutory provision, said Nan Hunter, “Legal Scholarship Director, Williams Institute, and Associate Dean and Professor of Law and Georgetown University Law Center.

The Williams Institute breaks it down this way –

DOMA & Federal Recognition of Married Same-Sex Couples:

United States vs. Windsor raises questions about federal recognition of same-sex couples legally married under state law. Of approximately 645,000 same-sex couples nationally, at least 20% live in a jurisdiction where they can marry. From 50,000 to 80,000 of same-sex couples in the United States are legally married, and more than 85,000 are in civil unions or registered domestic partnerships. If federal recognition of same-sex couples comes as a result of the court’s review, changes to federal policies will have a profound impact on these couples.

Changes to federal leave, tax and entitlement policies:

Surviving spouses of same-sex couples would gain access to partners’ Social Security benefits, which could add over $5,700 to the monthly income of the surviving spouse. See study.

In situations similar to that of the plaintiff in the Windsor DOMA case that the Supreme Court has decided to hear, same-sex couples who are affected by the estate tax would no longer be subject to a greater tax burden upon the death of their spouse than similarly-situated different-sex married couples. See study.

Same-sex couples working in the private sector would no longer have to pay 11% more than different-sex couples in taxes for employer-sponsored healthcare. See study.

Same-sex spouses of federal employees would be eligible for employee benefits that are currently provided to employees with different-sex spouses. See study.

Proposition 8 and State Recognition of Same-Sex Couples

Research suggests the court’s decision to review Hollingsworth v. Perry, the federal challenge to California’s Proposition 8, could impact thousands of same-sex couples.

“There has been extensive research on the lives and experiences of LGBT people and their families. This research has been critical in legal analysis of disparate treatment of same-sex couples under the law, including legal analysis by the federal trial court that ruled Proposition 8 unconstitutional in the case that the Supreme Court is now reviewing,” said David Codell, the Williams Institute’s Visiting Arnold D. Kassoy Senior Scholar of Law and Legal Director.

Research shows:

There are nearly 100,000 same-sex couples living in California. See study.

Over 24,000 same-sex California couples would be likely to marry within the next three years if permitted to do so. [Williams Institute Same-sex Couple Survey, 2010]

If California recognized same-sex marriage, 35% of same-sex couples in the U.S. would live in states where they can marry; and 28% of the U.S. population would live in states where same-sex couples can marry.

Extending marriage to same-sex couples has a positive economic impact. Wedding spending in Maine, Maryland and Washington could generate over $166 million in the first three years. In California alone, weddings could generate almost $290 million in new spending over three years.

Here is what the court released around noon today. Follow the links to SCOTUS Blog's timeline of the cases


The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether petitioners have standing under Article III, §2 of the Constitution in this case.

In case number 12-307 UNITED STATES V. WINDSOR, EDITH S., ET AL.

The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

According to SCOTUS Blog, the “Court has offered to rule on Prop. 8 and on DOMA Section 3, but it also has given itself a way not to decide either case. That probably depends upon how eager the Justices are to get to the merits; if they are having trouble getting to 5 on the merits, they may just opt out.”

DOMA Section 3 is the part that says the federal government may only recognize opposite-sex marriages.