Judgment on marriage equality | What’s happened, what to watch for, what to expect as the Supreme Court prepares to rule

The U.S. Supreme Court is expected to issue opinions in two cases this month that – in the best possible outcome – could clear the way for same-sex couples to marry throughout the United States, thus allowing those couples to access more than 1,100 federal benefits associated with marriage.

The justices in March heard arguments in challenges to California’s Proposition 8, the state’s voter-approved constitutional amendment defining marriage as the union of a man and a woman, and to the U.S. Defense of Marriage Act, which defines marriage as the union of a man and a woman for federal purposes.

WiG looks at the cases, the issues, the court, the potential outcomes and the history of the pursuit of marriage equality.

In the beginning

ALOHA FIGHT: Gay civil rights activists have fought for the freedom to marry since before the term “gay” was in wide use. But the push became better organized and more prominent in the mid-1990s, particularly in Hawaii, which was then expected to become the first state to legalize same-sex marriage.

Instead, the push for equality spawned the reinvigoration of the Christian right, leading to the federal Defense of Marriage Act (DOMA) and a rash of legislation and state constitutional amendments defining marriage as the union of a man and a woman.

EVOLUTIONARY: In 2004, Massachusetts became the first state to legalize same-sex marriage. The number of marriage equality states has increased to 12, as well as the District of Columbia. At first the progress was slow, but the pace in recent years has picked up. Last year, three states legalized same-sex marriage and, in May, three more states – Delaware, Rhode Island and Minnesota – did so.

REVOLUTIONARY: In 1996, when DOMA passed, 27 percent of Americans thought same-sex marriage should be legal. The numbers have changed dramatically over the years: 1999, 35 percent; 2005, 37 percent; 2007, 46 percent; 2009, 40 percent; 2011, 46 percent; 2013, 53 percent.

U.S. Defense of Marriage Act

DOMA: The 104th Congress overwhelmingly passed the Defense of Marriage Act and President Bill Clinton signed the measure into law in 1996. DOMA contains two basic provisions – one allows states to refuse to recognize same-sex marriages from other states and the second prohibits the federal government from recognizing same-sex marriages.

BENEFITS DENIED: More than 1,100 benefits and rights are tied to marriage at the federal level. These benefits, currently denied to married gay and lesbian couples, include Social Security payments to surviving spouses, surviving parent benefits, nearly 200 income tax provisions or deductions, family and medical leave, immigration rights and continued health care coverage.

LAW REVIEW: Judges in Massachusetts, New York and California have declared the federal marriage definition in DOMA unconstitutional. In 2011, the Obama administration’s Justice Department said while it is enforcing the law, it will not defend it in court.

BEFORE THE COURT: U.S. v. Windsor. The case involves 83-year-old Edith Windsor challenging DOMA’s federal marriage definition. Because the government didn’t recognize her same-sex marriage, Windsor paid $363,000 in inheritance taxes after her wife died in 2009. Had her spouse been a man, there would have been no tax. Windsor is represented by a team that includes the American Civil Liberties Union.

DOMA is being defended by House Republicans who hired attorneys using taxpayer money.

CONSTITUTIONAL QUESTION: Does Section 3 of DOMA violate the Fifth Amendment’s guarantee of equal protection as applied to people of the same sex who are legally married in their states.

POSSIBLE OUTCOMES: During oral arguments, justices took an interest in whether House Republicans had legal standing to defend the law and why the Justice Department was not defending DOMA. But at this stage, most legal experts don’t expect the court to simply dismiss the case and leave the lower court ruling – against DOMA – in place. Such a ruling is the first of several possible scenarios. 

In scenario two, the court upholds the federal marriage definition and legally married same-sex couples still will be denied more than 1,100 federal benefits.

In scenario three, the court strikes down DOMA and married same-sex couples have access to federal benefits associated with that legal status. If the majority accepts the Obama administration’s argument that discrimination based on sexual orientation should be unconstitutional, states could have a hard time justifying anti-gay marriage laws.

California Proposition 8

PEOPLE’S VOTE:  After a state supreme court ruling in May 2008, same-sex couples were able to marry in the state for a brief period. Then, in November 2008, California voters approved Proposition 8 and amended their constitution to limit marriage to unions “between a man and a woman.” Catholic and Mormon institutions invested heavily in promoting Prop 8.

LAW REVIEW: Prop 8 has been ruled unconstitutional by a U.S. district court and an appeals court.

BEFORE THE COURT: Hollingsworth v. Perry. The case involves two same-sex couples – Kris Perry and Sandy Stier and Paul Katami and Jeff Zarrillo – seeking the freedom to marry in California. Attorneys Ted Olson and David Boies with the American Foundation for Equal Rights represent the couples.

Prop 8’s defense is being paid for by proponents of the ballot initiative, because California’s governor and attorney general – the current administration and a prior administration – declined to defend the measure.

CONSTITUTIONAL QUESTION: Does the Equal Protection Clause of the 14th Amendment prohibit California from defining marriage as the union of a man and a woman?

POSSIBLE OUTCOMES: The justices, during oral arguments, showed interest in whether Prop 8 proponents had standing in the case. If not, the court could duck a decision. That’s scenario one, and it likely would mean same-sex marriages would resume in California.

Scenario two is the court upholds Prop 8 and rules same-sex marriage is not a constitutional right. This would mean each state would decide how to treat same-sex couples.

In scenario three, the court rules narrowly and strikes down California’s amendment. Depending on the language in the ruling, such a decision could only affect California or it could affect states with domestic partnership or civil union laws. AFER calls this the “seven-state ruling,” a reference to the seven states that recognize same-sex relationships with full partnership or civil unions but deny marriage rights.

In scenario four – the best scenario for LGBT people in the United States – the court finds that the guarantee of equal protection means gays and lesbians have a right to marry. If the ruling is wide-ranging, every other state marriage ban could be overturned. AFER calls this the “50-state ruling” because same-sex marriage would be legal everywhere.

Scholars, bloggers and lawyers have been debating the scenarios and the possible votes since the High Court took both cases. The one clear consensus is that Justice Anthony Kennedy will be the key fifth vote – or swing vote – on the decision.

On watch

TIME TABLE: The court has finished hearing oral arguments for this term and is expected to recess at the end of the month. Because arguments took place in late March, many court-watchers expect opinions in late June. But there is no advance notice for when a decision may be handed down. 

In Wisconsin 

HEY, PARTNER: A domestic registry law – which faces a right-wing challenge in court – has provided some benefits to same-sex couples since August 2009.

The law was enacted after voters, in November 2006, amended the constitution to define marriage as the union of a man and a woman. 

Wisconsin same-sex couples can marry in neighboring Iowa and soon in Minnesota, but  the state won’t recognize those mariages.