Under the U.S. Supreme Court: Justices consider DOMA challenges, Prop 8

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Correspondent
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WASHINGTON, Nov. 25 (UPI) -- It's crunch time at the U.S. Supreme Court this week for proponents and opponents of same-sex marriage as the high court, like Oz, retreats behind the curtain to work its magic.

The nine justices are scheduled to conference behind closed doors Friday and decide -- or delay deciding -- whether to hear any of the five challenges to the Defense of Marriage Act or California's Proposition 8 case.


The odds appear good they will accept at least one of the DOMA cases and the Prop 8 case. All six of the petitions were scheduled to be considered Nov. 20, but were delayed until next Friday, Nov. 30.

Some major media outlets are reporting the justices eventually may decide whether same-sex marriages must be allowed. But when it can, the high court avoids making sweeping constitutional rulings and tries to find the narrow path to a decision. Some of the issues may involve "standing" -- whether a person or a group has suffered an injury and therefore has the right to challenge or defend a law.


Another factor favoring the acceptance of the cases: Only four votes out of nine are needed to grant a writ of certiorari -- or acceptance of review -- so that a case can be heard. DOMA and Prop 8 all have taken a beating in the lower courts.

The Supreme Court's four-member conservative bloc -- five if you include swing vote Justice Anthony Kennedy -- might be inclined to grant review to either save DOMA or Prop 8, or write an opinion that gives Congress and the states some guidance on same-sex marriage.

The federal Defense of Marriage Act says federal benefits and considerations for married couples apply only to heterosexual unions.

The Obama administration is enforcing the 1996 act, but is one of the main challengers in court.

The entire law is not under attack. Section 2 says no state is required "to give effect to any public act, record, or judicial proceeding of another state that treats a relationship between two persons of the same sex as a marriage under its laws."

In other words, the law says a same-sex marriage in Maryland, Maine and Washington state, which just approved such unions, would not necessarily have to be recognized in any other state.


None of the challenges targets Section 2. Section 3, which is targeted in all the DOMA cases, says, "In determining the meaning of any act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

"Although Section 3 of DOMA does not purport to invalidate same-sex marriages in those states that permit them," the administration told the Supreme Court in a petition brief, "it excludes such marriages from recognition for purposes of more than 1,000 federal statutes and programs whose administration turns in part on individuals' marital status. ... Section 3 of DOMA thus denies to legally married same-sex couples many substantial benefits otherwise available to legally married opposite-sex couples under federal employment, immigration, public health and welfare, tax and other laws."

With the administration refusing to defend DOMA, U.S. House Republican leaders took up the banner. A group called the Bipartisan Legal Advisory Group of the United States House of Representatives, or BLAG, filed its own petition to the U.S. Supreme Court in the Massachusetts case, and has filed friend-of-the-court briefs in other DOMA cases.


"DOMA does not bar or invalidate any marriages but leaves states free to decide whether they will recognize same-sex marriage," the BLAG petition said. " ... Section 3 of DOMA simply asserts the federal government's right as a separate sovereign to provide its own definition, which 'governs only federal programs and funding.'"

Moreover, Congress did its own research before passing DOMA, the BLAG petition said.

"Before enacting DOMA [in 1996], Congress received and considered advice on its constitutionality and determined that DOMA is constitutional" after consulting a number of political and academic sources. "Congress specifically sought constitutional advice from the executive branch, and the Justice Department under the Clinton administration advised Congress three times that DOMA was constitutional."

In addition, the executive branch has a "constitutional duty to 'take care that the laws be faithfully executed,'" the BLAG petition said in footnote, citing Article II, Section 3 of the Constitution. The petition said the Justice Department during the Bush administration successfully defended the act several times.

"This court 'does and should accord a strong presumption of constitutionality to acts of Congress. This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an act is [constitutional],'" the petition said, citing a 1953 high court precedent.


California voters approved Proposition 8, the California Marriage Protection Act, in 2008 with slightly more than 52 percent for, nearly 48 percent against. Prop 8 said in part, "Only marriage between a man and a woman is valid or recognized in California."

An earlier, similar measure, Proposition 22, was overturned by a ruling from the California Supreme Court. For Prop 8, opponents went to federal court where a federal judge declared it unconstitutional. A three-judge appeals court panel in San Francisco agreed 2-1.

The petition to the Supreme Court filed by ProtectMarriage -- its sponsor is a state non-profit, California Renewal -- argues the appeals court misinterpreted Supreme Court precedent. It also argues the state has a compelling interest in limiting marriage to a woman and a man.

"The unique procreative potential of sexual relationships between men and women implicates vital social interests," the petition said. "On the one hand, procreation is necessary to the survival and perpetuation of society and, indeed, the human race; accordingly, the responsible creation, nurture, and socialization of the next generation is a vital -- indeed existential -- social good."

The petition said: "A central purpose of marriage in virtually every society ... is and always has been to regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society. In particular, through the institution of marriage, societies seek to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world."


With U.S. Supreme Court evenly divided by the four-member liberal bloc and four-member conservative bloc, the fate of DOMA or Prop 8 might come down to swing vote Kennedy.

Kennedy most often votes with the conservative bloc, allowing it to rule the roost at the high court.

But proponents of same-sex marriage might take comfort in two older opinions written by Kennedy and often reviewed by United Press International.

In 1996's Romer vs. Evans, a number of Colorado municipalities had passed "ordinances banning discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions and activities."

But in a statewide referendum, Colorado voters adopted Amendment 2 to the state Constitution, which banned legislative, executive or judicial action at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships."

The affected communities filed suit and a state judge issued a preliminary injunction declaring Amendment 2 invalid. The judge was sustained by the Colorado Supreme Court.

Then the U.S. Supreme Court, in a 6-3 majority opinion written by Kennedy, said Amendment 2 violated the U.S. Constitution's equal protection clause.


"We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else," Kennedy wrote. "This Colorado cannot do. A state cannot so deem a class of persons a stranger to its laws."

Justice Scalia led the dissenters, saying, "Today's opinion has no foundation in American constitutional law, and barely pretends to."

In 2003's Lawrence vs. Texas, the U.S. Supreme Court reversed a state appellate court and declared the Lone Star State's sodomy law unconstitutional. In a 6-3 opinion, Kennedy said the statute violated the U.S. Constitution's due process -- or fair proceedings -- clause.

Kennedy basically told government to get out of the bedroom.

"Liberty protects the person from unwarranted government intrusions into a dwelling or other private places," he wrote. "In our tradition the state is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the state should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct."

Again, Scalia led the dissenters, saying almost prophetically, "One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts -- and may legislate accordingly. The [Supreme] Court majority today pretends that it possesses a similar freedom of action, so that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada [in a decision that the Canadian government has chosen not to appeal]. ...


"At the end of its opinion -- after having laid waste the foundations of our rational-basis jurisprudence -- the [Supreme] Court [majority] says that the present case 'does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.' ... Do not believe it."

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