Cases to Watch: DOMA and Prop 8
In 1996, President Clinton signed into law the Defense of Marriage Act, colloquially known as DOMA, which forbids the government to extend benefits to same-sex couples who are legally married in their state of residence. In recent years, there have been a string of legal challenges to DOMA and numerous federal district judges and the U.S. Court of Appeals for the First Circuit have held that the law is a violation of the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. Last Friday, the Obama administration alerted the Supreme Court that they would be submitting requests in two new cases concerning the constitutionality of DOMA. These new cases will join the seven cases about equal marriage that are already pending at the Court, six of them involving DOMA and one regarding California’s Proposition 8.
Thus far, none of these cases have been scheduled for the Justice’s Conference, the weekly meeting when they decide which cases they will hear during the term. The various petitions challenging DOMA are on different schedules, so it remains unclear whether the Justices will consider them as a group in Conference. Solicitor General Verrilli has noted that the Court will be asked whether Section 3 of DOMA, which limits the extension of almost 1,000 federal benefits to the marriage of one man and one woman, is constitutional.
While the DOMA cases do not ask the Court to consider the constitutionality of same-sex marriage because all of the plaintiffs are already married under their state’s laws, the petition for certiorari in the Proposition 8 case, Hollingsworth v. Perry, raises that singular question. Supporters of “Prop 8” are asking the Court to decide whether the equal protection clause of the Fourteenth Amendment prohibited California from “defining marriage as the union of a man and a woman.” The 9th Circuit Court ruled narrowly that the right to same-sex marriage, which was a legal right in California and then stripped with the passage of Proposition 8, cannot be taken away. The brilliant legal team that successfully argued against Proposition 8, Ted Olsen and David Boies (recipients of the URJ’s highest honor – the Maurice N. Eisendrath “Bearer of Light” Award), filed a brief in opposition to the Court deciding to hear oral argument in Hollingsworth. The Proposition 8 case is the only marriage equality case pending before the Court that the federal government has not yet taken part in.
Our holy texts teach that each of us is created b’tselem Elohim, in the Divine image, and as such are entitled to be treated with dignity and respect. We turn to our faith and history for inspiration to stand up for the rights of LGBT Americans, including marriage equality, for we also know the experience of being victims of group hatred, persecution, and discrimination.
The RAC will continue to follow the challenges to DOMA and the petition to reconsider the Proposition 8 ruling. The earliest the Justices will consider these cases in their weekly Conference is late September. Check back in the coming weeks for more “Cases to Watch.”