Supreme Court to review constitutionality
of same-sex marriage
Friday, December 07, 2012 Julia Zebley
[JURIST] The US Supreme Court [official website] on Friday granted certiorari [order
list, PDF] in two cases dealing with same-sex marriage [JURIST
backgrounder]. InHollingsworth v. Perry [docket; cert. petition,
PDF] the court will consider the validity ofProposition 8 [JURIST news
archive], a California referendum that revoked same-sex marriage rights.
Same-sex marriage was briefly legal in California following a state Supreme
Court decision and then overturned with a constitutional amendment created by
Proposition 8. Early in the proceedings, the state of California declined to
defend the law, and the backers of Proposition 8, ProtectMarriage.com [advocacy website], successfully
intervened. The court will consider whether Proposition 8 is constitutional
under the Equal Protection Clause of
the Fourteenth Amendment as
well as if the Proposition 8 supporters had standing to intervene under Article III [LII Cornell
backgrounders].
The court also granted United States v.
Windsor [docket; cert. petition,
PDF], which examines the constitutionality of Section 3 of the Defense of Marriage Act (DOMA)
[text; JURIST news archive]. The case concerns Edith Windsor [ACLU
backgrounder], a widow who had a legal same-sex marriage under Canadian and New
York law but was denied spousal deduction for federal estate taxes when her
wife died. The Supreme Court will consider the constitutionality of DOMA under
the Fifth Amendment [LII
Cornell backgrounder]. Prior to her challenge, the US Department of Justice
(DOJ) announced that it would no
longer defend DOMA in courts, and in response, the US House of Representatives formed [JURIST reports] the
Bipartisan Legal Advisory Group (BLAG) to defend the law. The court will also
consider if BLAG had standing to intervene and if the DOJ's refusal to defend
the law deprives the Supreme Court of jurisdiction. The Windsorcourt
held homosexuals to an intermediate scrutiny standard of review. The other petitions
concerning same-sex marriage remain on hold.
