The Chicago Bar Association previewed the oral arguments for two marriage equality cases March 25, highlighting the basic tenets of each case.
Both cases center around who has standing or jurisdiction in an appeal, as well as the application of the Equal Protection Clause of the 14th Amendment.
Hollingsworth v. Perry challenges California's Proposition 8, the constitutional amendment approved by popular vote in 2008, overturning previously legal same-sex marriage.
Judge Vaughn Walker, presiding over the United States District Court for the Northern District of California, concluded Proposition 8 served no legitimate purpose and declared it unconstitutional under the Due Process and Equal Protection clauses.
When the state officials named as defendants in the case chose not to appeal Judge Walker's decision, proponents of Proposition 8 appealed to the Ninth Circuit Appellate Court. The California Supreme Court upheld the proponents' right to assert the state's interest when government officials fail to. The Ninth Circuit Court then ruled against the proponents, declaring Proposition 8 unconstitutional because it took away the right to marry after it was already extended to same-sex couples.
Opponents of Proposition 8 will likely argue that the group appealing the decision has no standing because they will not be harmed if same-sex couples can marry. If the U.S. Supreme Court agrees, it will likely negate the Ninth Circuit Court ruling and revert to Judge Walker's ruling in district court.
If the U.S. Supreme Court finds there is standing, it will need to decide if Proposition 8 violates the Constitution. Proponents of Proposition 8 argue the state has a vested interest in limiting marriage to opposite-sex couples because they can procreate without artificial intervention. They will also likely argue marriage is not a fundamental right and is an issue that should be left up to the states.
Opponents of Proposition 8 argue that denying marriage to same-sex couples infringes upon the right to marry and unconstitutionally violates the Equal Protection clause. They will also cite California's myriad of other laws that are inclusive of same-sex couples, including civil unions that provide all the same legal ramifications of marriage without the same title.
"I didn't expect [the U.S. Supreme Court] to take on Prop. 8, and when they added the standing issue, I thought it was very interesting," said Anthony Niedwiecki, associate professor at John Marshall Law School.
United States v. Windsor—which challenges section 3 of the federal Defense of Marriage Act defining marriage as between one man and one woman—will take on similar arguments.
The Obama Administration will no longer defend DOMA, but it does still enforce it. So, when Edith Windsor inherited the estate of Thea Spyer, her legal spouse in Canada, Windsor paid $363,035 in federal estate taxes to the U.S. government. If her partnership was legally recognized in the United States, Windsor would not have to pay taxes for inheriting her spouse's estate.
The Department of Justice started making arguments in favor of Windsor's case instead of defending DOMA, prompting the intervention of a group of five members of Congress to form the Bipartisan Legal Advisory Group (BLAG) to defend DOMA.
The U.S. Supreme will first decide if BLAG has standing in the case, asserting a concrete or particularized injury traceable to the defendant's unlawful conduct. Windsor's attorneys will likely argue that BLAG has no standing in the case because the group has not experienced distinct harm.
They will also argue that BLAG, a group of politicians from the legislative branch, interferes with the separation of powers and system of checks and balances. BLAG will argue that as members of Congress, they have a vested interest in enforcing laws they make.
If the U.S. Supreme Court rules that BLAG has standing and proceeds with the case, arguments will center around treating the case with intermediate or heightened scrutiny. Windsor's camp contends that gay and lesbian people have been subject to a significant history of discrimination, and sexual orientation does not inherently relate to one's ability to participate in and contribute to society.
"If intermediate scrutiny applies, then the law is unconstitutional," said Kim D. Chanbonpin, associate professor at John Marshall Law School.
Many organizations have submitted amicus briefs supporting marriage equality, including the American Jewish Committee, the Anti-Defamation League, the Southern Poverty Law Center and the NAACP Legal Defense and Education Fund.
"Queer—and I mean this as a politicized identity—people of color and transgender people have sort of been excluded from the mainstream gay and lesbian rights movement," said Chanbonpin. "So the [NAACP Legal Defense and Education Fund] framing this issue as a civil rights issue is very telling."
The U.S. Supreme Court will begin hearing oral arguments in the cases March 26.
