Focus on the Court

Supreme Court to Decide Whether to Hear DOMA Cases



Today the Supreme Court will decide whether or not to hear any of the marriage equality cases currently awaiting a grant of a writ of certiorari (cert). Nine petitions challenging the so-called Defense of Marriage Act (DOMA) have been filed before the court, along with one petition challenging the 9th Circuit Court’s ruling on California’s Proposition 8. The Court could decide today to hear any one of these cases, more than one, or to pass on all of them and, therefore, pass on ruling on the subject of marriage equality. The RAC and other LGBT rights groups hope that the Court’s decision to hear any of these cases could be a major step forward in the struggle for marriage equality in America.

DOMA, among other things, prohibits the federal government from recognizing any marriage other than those between one man and one woman. This is the main part of the law now being challenged. Now that nine states have legalized same-sex marriage, there are many couples who are legally married, yet denied the federal benefits offered to heterosexual couples. The URJ has opposed DOMA since its creation both because it is an injustice to the LGBT community and because it prohibits the federal government from recognizing certain marriages performed by Reform rabbis.

Two Federal Circuit Courts have already struck down DOMA as unconstitutional, most recently in the 2nd Circuit’s ruling on the case Windsor vs. The United States. Edith Windsor had been with her partner for forty-two years, and they were legally married since 2007. However, after her partner died in 2009 she found that she owed $350,000 in inheritance taxes, considerably more than she would have had the government recognized their marriage.

In ruling in favor of Edith Windsor, the court decided that sexual orientation constituted a “quasi-suspect class.” This means that any law that treats people differently based on their sexual orientation should be subject to “heightened scrutiny” and thus is much less likely to be upheld. This aspect of the Windsor case sets it apart from several of the other cases under consideration which only ruled through something called “rational basis,” a much less stringent form of evaluation. Whether the court chooses to hear a “heightened scrutiny” case or a “rational basis” case could affect how consequential their ruling might be.

The result could be even more dramatic if the Court chooses to hear the Proposition 8 case. While the DOMA challenges only focus on same-sex couples’ rights to have their legal marriages recognized by the federal government, the petition in the Proposition 8 case argues that same-sex couples have a constitutional right to marry. It is unclear what the ramifications of such a ruling would be if it were upheld, and many in the LGBT advocacy community consider this outcome to be unlikely.

It is of course too early to speculate what would happen if the Court decides to take up any of these cases, but much of the attention so far has focused on Justices Elena Kagan and Anthony Kennedy. Justice Kagan defended DOMA in at least one of the cases currently under review as President Obama’s Solicitor General (the Administration has since stopped defending this portion of the law). Depending on which case is heard, Justice Kagan may choose to recuse herself, which could make an overturning of DOMA much less likely. Justice Kennedy, considered to be the Court’s “swing Justice,” has not always ruled in favor of LGBT rights, but some see potential for change as Justice Kennedy looks toward cementing his legacy.

No matter what the Court decides to do today, the RAC will be following its consequences closely, and keeping you aware of consequences for equal marriage and for a wide range of issues that the Supreme Court will consider this term. The URJ strongly supports the rights of LGBT couples to marry and has advocated against DOMA for years. We face this decision with great excitement and great hope.

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About Benny Witkovsky

Benny Witkovsky is an Eisendrath Legislative Assistant, he is from Madison, WI, and recently graduated from Vassar College.

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