On June 26, 2013, near the very end of its 2012 session, the U.S. Supreme Court handed down opinions in two cases regarding same-sex marriage. In the first, U.S. v. Windsor (12-307), the Court ruled that a section of the Defense of Marriage Act, which defined marriage as between a man and a woman, was unconstitutional. The second, Hollingsworth v. Perry (12-144), dealt with the constitutionality of an amendment to California's constitution banning same-sex marriage (Proposition 8). In the Hollingsworth case, the Court declined to rule on the central issue (i.e., the constitutionality of same-sex marriage), but instead ruled on procedural grounds, thereby leaving the district court decision, which held the Proposition unconstitutional, standing.
The recent Supreme Court decisions on same-sex marriage are notable because in taking on and attempting to resolve some major legal questions, these two highly anticipated opinions leave so many legal issues unanswered and unsettled. The simple reason is that there are at least three major marriage equality problems which still exist: 1) same-sex couples are barred from marrying in 36 states by statute or constitutional amendment; 2) couples, who are legally married, but who then move to a state that does not recognize their marriage; and 3) the status of same-sex couples when it comes to our immigration laws which are controlled by Congress.
The Windsor decision struck down DOMA’s Section 3, which barred the federal recognition of legal same-sex marriages, but the Court was not confronted with Section 2, which authorizes states to deny recognition of other states’ marriages. So, we have a situation where a same-sex couple, who are validly married in New York and drive through the Lincoln Tunnel, are then no longer considered married once they cross over to New Jersey.
The Hollingsworth decision, which effectively upheld the district court decision striking down Proposition 8, held that the petitioners (appellants) had no standing to appeal the decision to either the Ninth Circuit or the Supreme Court and simply side-stepped the entire issue of same-sex marriage equality.
Future litigants will probably focus their attention on the views of Justice Kennedy. In his majority opinion in Windsor, he looked to states to define marriage for themselves, but he also stated that denying marriage to same-sex couples harms their children by assigning them second-class status.
Law and politics are intertwined in the marriage debate, and it touches upon many areas of the law. The latest Supreme Court decisions turned the same-sex marriage debate toward future confusion; so far, it seems that the Court is unwilling to get ahead of the states on this issue, but that may change. The U.S. v. Windsor and Hollingsworth v. Perry matters were only the opening salvo of what will be a heavily litigated fight for same-sex marriage equality in both federal and state courts, and there is a high likelihood for the marriage wars to stretch many years into the future and certainly be back on the Supreme Court’s docket.
Read a related article: Counsel Press Assists with Amicus Filings in United States v. Windsor and Hollingsworth v. Perry