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Supreme Court has range of options on same-sex marriage, DOMA cases

Sunday, June 23, 2013

WASHINGTON — The waiting is almost over.

On Wednesday morning, the U.S. Supreme Court will announce the outcomes in cases on California’s Proposition 8 ban on same-sex marriage and the federal Defense of Marriage Act.

The federal law, known by the shorthand DOMA, defines marriage as the union of a man and a woman and therefore keeps legally married gay Americans from collecting a range of federal benefits that generally are available to married people.

Carolyn Kaster, AP (File)
Kevin Coyne of Washington holds flags in front of the Supreme Court in Washington on March 27, 2013, as the court hears arguments on gay marriage.

The justices have a lengthy menu of options from which to choose. They might come out with rulings that are simple, clear and dramatic. Or they might opt for something narrow and legalistic.

The high court could strike down dozens of state laws that limit marriage to heterosexual couples, but it also could uphold gay marriage bans or say nothing meaningful about the issue at all.

A look at potential outcomes for the Proposition 8 case and then for the case about DOMA:


Pablo Martinez Monsivais, AP (File)
A demonstrator holds up bible while marching outside the Supreme Court in Washington on March 26, 2013 during the court’s hearing of arguments on Proposition 8.

J. Scott Applewhite, AP
Plaintiffs in the Proposition 8 case, Jeff Zarrillo, and Paul Katami (second and third from left) with attorney Ted Olson outside the Supreme Court. At left is Adam Umhoefer, executive director of the American Foundation for Equal Rights.

Carolyn Kaster, AP
A woman holds up a sign that reads “REPEAL DOMA,” the Defense of Marriage Act in front of a group from Alabama, clasped in prayer in front of the Supreme Court in Washington, on March 27, 2013.

Q. What if the Supreme Court upholds Proposition 8?

A. This would leave gay Californians without the right to marry in the state and would tell the roughly three dozen states that do not allow same-sex marriages that there is no constitutional problem in limiting marriage to a man and a woman.

Such an outcome probably would trigger a political campaign in California to repeal Proposition 8 through a ballot measure, which opinion polls suggest would succeed, and could give impetus to similar voter or legislative efforts in other states. Proposition 8 itself was adopted by voters in 2008, but there has been a marked shift in Americans’ attitudes about same-sex marriage in the past five years.

Q. What if the court strikes down Proposition 8?

A. A ruling in favor of the two same-sex couples who sued to invalidate the gay marriage ban could produce one of three possibilities. The broadest would apply across the country, in effect invalidating constitutional provisions or statutes against gay marriage everywhere.

Or a majority of the justices could agree on a middle option that applies only to California as well as Colorado, Hawaii, Illinois, Nevada, New Jersey and Oregon. Those states already treat gay and straight couples the same in almost every respect through civil unions or domestic partnerships. The only difference is that gay couples there are not allowed to marry.

This so-called seven-state solution would say that the Constitution forbids states to withhold marriage from same-sex couples while giving them all the basic rights of married people. But this ruling would not implicate marriage bans in other states and would leave open the question of whether states could deprive gay couples of any rights at all.

The narrowest of these potential outcomes would apply to California only. The justices essentially would adopt the rationale of the federal appeals court that found that California could not take away the right to marry that had been granted by the state Supreme Court in 2008, before Proposition 8 passed.

In addition, if the U.S. Supreme Court were to rule that gays and lesbians deserve special protection from discriminatory laws, it is unlikely that any state ban on same-sex marriage could survive long, even if the justices don’t issue an especially broad ruling in this case.

Q. Are there other potential outcomes?

A. Yes, the court has a technical way out of the case without deciding anything about same-sex marriage. The Proposition 8 challengers argue that the private parties defending the provision — members of the group that helped put the ban on the ballot — did not have the right to appeal the trial judge’s initial decision striking it down, or that of the federal appeals court.

The justices sometimes attach great importance to this concept, known as “standing”. If they find Proposition 8′s proponents lack standing, the justices also would find the Supreme Court has no basis on which to decide the case.

The most likely outcome of such a ruling also would throw out the appeals court decision that struck down the ban but would leave in place the trial court ruling in favor of same-sex marriage. At the very least, the two same-sex couples who filed the lawsuit almost certainly would be granted a marriage license, and Gov. Jerry Brown, a Democrat, who opposes Proposition 8, probably would give county clerks the go-ahead to issue marriage licenses to same-sex couples.

Q. Are the possibilities for the DOMA case as complicated?

A. No, although there are some technical issues that could get in the way of a significant ruling.

Q. What happens if the court upholds Section 3 of DOMA, defining marriage for purposes of federal law as the union of a man and a woman?

A. Upholding DOMA would not affect state laws regarding marriage but would keep in place federal statutes and rules that prevent legally married gay Americans from receiving a range of benefits that are otherwise available to married people. These benefits include breaks on estate taxes, health insurance for spouses of federal workers and Social Security survivor benefits.

Q. What if the court strikes down the DOMA provision?

A. A ruling against DOMA would allow legally married gay couples or, in some cases, a surviving spouse in a same-sex marriage, to receive benefits and tax breaks resulting from more than 1,000 federal statutes in which marital status is relevant.

For 83-year-old Edith Windsor, a New York widow whose case is before the court, such a ruling would give her a refund of $363,000 in estate taxes that were paid after the death of her spouse, Thea Spyer. The situation could become complicated for people who get married where same-sex unions are legal, but who live or move where they are not.

Q. What procedural problems could prevent the court from reaching a decision about DOMA?

A. As in the Proposition 8 case, there are questions about whether the House Republican leadership has standing to bring a court case to defend the law because the Obama administration decided not to.

House Republicans argue that the administration forfeited its right to participate in the case because it changed its position and now argues that the provision is unconstitutional.

If the Supreme Court finds that it does not have the authority to hear the case, Windsor probably would still get her refund because she won in the lower courts, but there would be no definitive decision about the law from the nation’s highest court and it would remain on the books. It is possible the court could leave in place appeals court rulings covering seven states with same-sex marriage: Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island and Vermont.

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38 more reader comments:

  1. I hope Kennedy issues a sweeping ruling in favor of same-sex marriage.

    Posted on Sunday, June 23, 2013 at 8:07pm
  2. It light of where we stand I could live with them saying let the states work out the marriage issue, as I see it public opinion and social acceptance is quickly moving in our direction. I do believe they must strike down DOMA as unconstitutional as it bars states Nd the fed from recognizing what the states have agreed upon moving forward, most importantly from one gay marriage state to another, federal benefits for couples, and my personnel interest federal interest for partners of married same sex military personnel! DOMA has to go and we have to keep fighting. We also have to move more main stream as well, as we have been doing over the past few years! Pride Events need to be family events and community events they don’t have to thumb our noses at the establishment anymore, many of which support us now!

    Posted on Sunday, June 23, 2013 at 8:12pm
  3. fabs

    Posted on Sunday, June 23, 2013 at 8:15pm
  4. You’re so ignorant. Homosexuality has been documented in over 1500 species.

    But we all know you don’t believe in Facts, since you believe in fictitious deities.

    Posted on Sunday, June 23, 2013 at 8:38pm
  5. no, alabama, tennesse, mississippi, florida, north carolina and other red state will have a difficult time to legalize marriage equality…

    Posted on Sunday, June 23, 2013 at 8:50pm
  6. Hey not everyone who believes in deities are as ignorants as this idiot, I believe in God and I’m Bisexual and going with a gay guy so as long as love someone or care about someone then there is no reason to hate. :|

    Posted on Sunday, June 23, 2013 at 8:50pm
  7. Neither is being an asshole

    Posted on Sunday, June 23, 2013 at 8:52pm
  8. Norhassan, you just committed one of the biggest mistakes of all and listed all the old slave states in your commits! I am from Mississippi, white and have fought prejudice all my life because people assume I am racist because of those factors. I can tell you even in my home state of Mississippi things are changing, attitudes are changing. The Internet and instant news have changed the minds of young folks so fast the old fat bastards can’t keep up. That is why the conservatives are so scared and barking so loud, you poll the junior high and highschool kids in those states and they don’t care who marries who. Those kids will be voting in the coming years, the older adults will be doing nothing but dying off. We can argue among ourselves here, spend our money trying to change the minds of older voters, or we can just get the younger generation that agrees with us to be active in politics and the voting process. Just never assume a state in the South is below major change. Being prejudice is being part of the problem not part of the solution. Spend more your energy in the states you feel need more change, lobby their congressmen and women, but never ever in a public forum group the old south in the way you did in your previous post! We are all in this together and every state has its detractors about the issue and will have until the end of time. LGBT people had better get under one umbrella and stay there to fight this. Utopia does not exist, we have to be ready for a mixed or unfavorable or no response from SCOTUS, but We have to be ready for the next round of fighting and it can’t be infighting in the LGBT Community! Have respect for one another’s issues, culture, special circumstances, but above all we are in this together!

    Posted on Monday, June 24, 2013 at 1:32am
  9. We cannot cure cancer.
    We can’t conquer racism, sexism, or homophobia.
    We cannot find an end to obesity
    We cannot end poverty.
    But we can force the government to let us put a ring on our partner’s finger?

    i’m glad we as a society have our priorities straight!

    Posted on Monday, June 24, 2013 at 5:30am
  10. If left up to the states, it will never be legal here in Tennessee where I live. Regardless of how progressive the rest of the country becomes, people here still use the n-word and don’t think two f-ggots should be allowed to marry. We’re the state with the “Don’t Say Gay” bill in Congress…and they are the educated part of our population. It will never happen here. The average reading level in the area where I live is 3rd grade. Third grade!! These people will never be open minded enough to vote for gay marriage when they aren’t even educated enough to read about the pros and cons.

    Posted on Monday, June 24, 2013 at 6:11am
  11. What EXACTLY are they waiting for?

    Posted on Monday, June 24, 2013 at 8:11am
  12. Their all idiots, and think they can waste our precious time. God i hate our stupid ass govt

    Posted on Monday, June 24, 2013 at 8:14am
  13. Rory you should never put down the government, they are just people too.

    Posted on Monday, June 24, 2013 at 8:18am
  14. hell to freeze over

    Posted on Monday, June 24, 2013 at 8:18am
  15. Apparently….

    Posted on Monday, June 24, 2013 at 8:19am
  16. LOLOL! Oh please, their all crooked, Their all corrupt, And this supreme court is no better, 7 or 8 people sitting back with law degrees, making deicisons for us all, but teasing us with cheese? WAIT A LITTLE MORE MOUSIES, Wait 5 more months, WAIT ANOTHER week. they all suck

    Posted on Monday, June 24, 2013 at 8:22am
  17. Possibly the intelligence level of the country to make a dramatic jump into at least double digits. There are too many single-digit people speaking, some from elected seats in government.

    Posted on Monday, June 24, 2013 at 8:28am
  18. They need to stop drinking the kool-aid and start drinking coffee. In other words “wake up” homosexuality has always been around that will not change.

    Posted on Monday, June 24, 2013 at 8:36am
  19. Government just needs to separate their legalities and private lifestyle.

    Posted on Monday, June 24, 2013 at 8:37am
  20. The answer is so obvious DOMA and Proposition 8 are un-constitutional. The Defense of Marriage Act is absolutely un-necessary and I wonder why in the world would our Congress ever pass such a thing. Proposition 8 was backed by The Mormon Church as if they have the right to push their version of morality on the citizens of the United States of America.

    Posted on Monday, June 24, 2013 at 9:22am
  21. We pay taxes to support things we do not even know about, so why come we can not have what we pay tax for that we love, I love my girl and I just want to be honored like ppl that share the same whether straight or lgbt

    Posted on Monday, June 24, 2013 at 9:29am
  22. …it’s the fault of the pseudo-religious GOP…they wish to nationalize and impose on everyone their wealthy white-hetero elite pandering version of Christianity, which isn’t Christianity at all … the same thinking, that at one time, justified slavery…high jacking the religious sentiment of the common people for political gain…continuing the proliferation their kind and using religion to justify their bigoted philosophies…

    Posted on Monday, June 24, 2013 at 9:52am
  23. Crossing my fingers for the best

    Posted on Tuesday, June 25, 2013 at 7:42pm
  24. after todays F/up ruling on voting rights. I hope they do the right thing now

    Posted on Tuesday, June 25, 2013 at 7:45pm
  25. good and Crossing my fingers for very best thing for us all tom

    Posted on Tuesday, June 25, 2013 at 7:45pm
  26. Very afraid based on their recent decisions.

    Posted on Tuesday, June 25, 2013 at 7:46pm
  27. Not a lot of confidence in this court right now given what they did to the Voting Rights Act.

    Posted on Tuesday, June 25, 2013 at 7:47pm
  28. Considering recent, surprising rulings…we might not get what we have hoped for tomorrow. :(

    Posted on Tuesday, June 25, 2013 at 7:49pm
  29. Don’t expect much as far as I see it.

    Posted on Tuesday, June 25, 2013 at 7:49pm
  30. Very informative .. thanks..

    Posted on Tuesday, June 25, 2013 at 8:00pm
  31. I’m hoping Kennedy steps up and issues a National Ruling.

    Posted on Tuesday, June 25, 2013 at 8:03pm
  32. Very nervous about tomorrow. I’m not feeling very optimistic

    Posted on Tuesday, June 25, 2013 at 8:14pm
  33. I hope that they correctly vote on these issues and allow marriage equality for all. Times are changing, and the world is changing with it. The US cannot fall behind a curtain of ignorance on this issue.

    Posted on Tuesday, June 25, 2013 at 8:35pm
  34. How about this option;
    they give gay people all their rights 100 percent, like being allowed to marry or
    I put a bullet through their skull !

    Posted on Tuesday, June 25, 2013 at 9:10pm
  35. Holding breath.

    Posted on Wednesday, June 26, 2013 at 12:55am
  36. I foresee a vote to strike down DOMA, but marriage equality will not be forced upon all states at once… They are going to keep it a state’s rights issue, although the Federal government will acknowledge gay marriage from states that already accept it.
    I’m not sure about the Prop 8 vote, though… That’s very messy, since it was a public vote that did limit people’s civil rights.

    Posted on Wednesday, June 26, 2013 at 5:14am
  37. If you happen to live in a state that isn’t pro marriage equality, please get mobilized or involved with others in a marriage equality group. Find out which government senators or representatives are pro marriage equality in your state and fight to get a bill going in the state house of reps or senate. It stems from action!

    Posted on Wednesday, June 26, 2013 at 5:17am
  38. May i add something..

    The world is a different place today than it was even just a decade ago. Allot of hopes & dreams are riding on the “US Supreme Court” today regarding LGBT rights.

    Remember one thing though regardless of what they rule for or against. Our struggles will never be truly over in reality, we have to take the small crumbs offered to us, and use them to build what we all need to have. Respect, Self worth, integrity, empathy and compassion.

    The supreme court in reality, is nothing more than a few learned men and women who really have no other power than the ability to interpret the laws man has written..good or bad.

    My point is, we will all still be here, our lives will go on and if necessary we will make adjustments so that what lives we do have can be as fulfilling as we wish to make them. Do you really need this Supreme Court to make that happen? Really?

    At the end of the day, i hope no matter what the outcome is, is that you look inward towards your self and feel that you “belong”, are loved, and respected and not by the world..for it is not the worlds place to be those things to you, but by friends, family and co workers, all a part of your daily life, which when all is said and done, is all that in reality really matters.

    Just a humble opinion from someone who has done battle, marched, lobbied, picketed, boycotted and been raided. Life regardless of what anyone says, or does, is what you decide it to be. Never ever give that up.

    Peace, love, empathy and compassion were always, should always be the cornerstones of our “community”.

    ~ Glenn

    Posted on Wednesday, June 26, 2013 at 5:21am