What are Prop 8 and DOMA and Why Do They Matter?

This week, as the Supreme Court released its rulings on a variety of different issues, supporters of same-sex marriage were particularly anxious to hear an important piece of news: the Court’s ruling on the Defense of Marriage Act (DOMA) and California’s Proposition 8.

What is the Defense of Marriage Act (DOMA)?

The Defense of Marriage Act is a federal law that restricts federal marriage rights to opposite-sex couples. It was enacted on September 21, 1996 under the Clinton administration, though Clinton, among others who were involved in the law’s enactment, has since changed his position and advocated for its repeal.

Supreme Court deems DOMA unconstitutional

Supreme Court deems DOMA unconstitutional

The law’s exact wording on the issue of marriage is as follows:
“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.” (Defense of Marriage Act)

Among others, these are the benefits that have been denied to same-sex marriages under the Defense of Marriage Act:

  • Insurance benefits for government employees
  • Social Security survivors’ benefits
  • Immigration benefits
  • Joint tax return benefits

What is Prop. 8?

Prop. 8, or California Proposition 8, is a ballot proposition passed in California’s November 2008 elections. Much like DOMA, it declares that only opposite-sex marriages may be recognized by the state of California. The proposition effectively overturns a California Supreme Court ruling released in May of 2008 that found marriage to be a fundamental constitutional right that should be granted to all couples. The timeline of same-sex marriage history in California is shown below:

March 7, 2000: Proposition 22 is passed 61.4% to 38%, defining marriage in California as the union between a man and a woman.

September 2, 2007: The California Senate approves Assembly Bill 849, a bill about fisheries-research measures that was amended to address the legalization of same sex marriage.

September 6, 2007: The California State Assembly approves Assembly Bill 849.

September 29, 2007: Governor Arnold Schwarzenegger vetoes the Assembly Bill 849, citing Proposition 22 as an indication of voter opinions on the issue and saying that the legality of same-sex marriage should be decided by the courts.

May 15, 2008: The California Supreme Court strikes down Proposition 22 as well as a law passed in 1977, both of which denied same-sex marriage legal recognition. Governor Schwarzenegger pledges to oppose Proposition 8, which would be voted on in November of that same year.

November 4, 2008: California voters pass Proposition 8 with 52% voter approval, essentially overturning the California Supreme Court’s May ruling.

US Supreme Court hearings
Proposition 8:
The plaintiffs in this case were Kristin Perry, Sandra Stier, Paul Katami, and Jeffrey Zarrillo. Both same-sex couples were denied marriage licenses under Prop. 8 in May of 2009.

Because both then Attorney General Jerry Brown and then Governor Arnold Schwarzenegger declined to defend Proposition 8 in court, the defendants for this case were two groups: ProtectMarriage.com, under the leadership of Dennis Hollingsworth, and the Campaign for California Families. They take the place of the Attorney General and Governor in the case. It’s worth noting that current Attorney General Kamala Harris and current Governor Jerry Brown both ran on platforms that included a declination to defend Prop. 8 in court.
The Prop. 8 case, or Hollingsworth v. Perry, answered the following question as stated by the Court:

“Whether it violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment for a State to use the ballot-initiative process to extinguish the state constitutional right of gay men and lesbians to marry a person of the same sex.” (Petition for Writ of Certiorari)

This refers to Section One of the Fourteenth Amendment, which states that the law must provide all citizens with equal protection and cannot remove a citizen’s rights without due process:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection

of the laws.” (Amendment 14, Section 1)

Many claim that there was no argument against Prop. 8’s unconstitutionality because the State has no vested interest in keeping same-sex couples from marrying.

Defense of Marriage Act:

In this case, also known as United States v. Windsor, Edith Windsor was the plaintiff. In 2007, Windsor was married to Thea Spyer in Toronto, Canada. But when Spyer died in 2009, at a time when New York legally recognized same-sex marriages from other jurisdictions, as it continues to do today, Windsor was required to pay $363,053 in federal estate taxes. Had the federal government recognized Windsor and Spyer’s marriage, Windsor would not have had to pay any of these taxes.

Because the Department of Justice has declined to continue a defense of the Defense of Marriage Act, the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) will take its place. This group consists of five members of the House of Representatives.

There were three questions presented in this case:

  1. “Whether the executive branch’s agreement with the court below that DOMA is unconstitutional deprives this Court [the Supreme Court] of jurisdiction to decide this case” (Writ of Certiorari).
  2. “Whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case” (Writ of Certiorari). Article III standing allows a party to argue a case despite the fact that it is not directly impacted by the outcome of that case, in a legal sense.

In a December episode of Hardball, Chris Matthews noted that the Lawrence Case Opinion (which deemed anti-sodomy laws unconstitutional), given by Justice Anthony Kennedy, potentially provides a basis on which to rule DOMA unconstitutional by its outlining of personal liberty:

“Liberty protects the person from unwarranted government intrusions. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” (Lawrence Case Opinion)

Woman shows support for gay marriage

Woman shows support for gay marriage

Moreover, many pointed to the fact that the Supreme Court has deemed marriage a fundamental right on fourteen accounts, including the case of Loving v. Virginia, which declared the illegality of interracial marriages unconstitutional. The Loving v. Virginia case was referenced several times during the Supreme Court’s hearing and is expected to have held serious weight in the Court’s decision.

What were the rulings?

The Supreme Court released its decisions on these two cases the morning of Wednesday, June 26th. In the California Proposition 8 case, a 5 – 4 majority found, as NPR’s Carrie Johnson explains, “the petitioners [i.e. the defendants] lack standing so the court avoids the underlying issue, remands and wipes away the decision by the 9th Circuit Court of appeals, which means for now the lower court ruling invalidating California’s Prop 8 stands.” This means that same-sex marriage is now legal in California, though this decision does not have national implications for same-sex marriage.

In the United States v. Windsor case, the Court found the Defense of Marriage Act to be unconstitutional, as it violated the Fifth Amendment by not granting same-sex couples the “equal liberty” that they are guaranteed. The decision, a 5 – 4 split with the majority opinion delivered by Justice Anthony Kennedy, requires the national government to recognize the federal marriage rights of same-sex marriages. It does not, however, require all fifty states to issue same-sex marriage licenses, as some had hoped would occur. Despite this, however, many proponents of same-sex marriage believe this decision to have been a great victory and a monumental step forward for marriage equality.

Further Reading:

Throughout both of these cases, many compared the civil-rights in question with those addressed by Reverend Dr. Martin Luther King’s Letter from Birmingham Jail. You can find an online study guide for the letter here: http://bit.ly/1aNVhXw.

Works Cited:

Matthews, Christopher. “Supreme Court to Legalize Gay Marriage? (December 7, 2012 – MSNBC),” YouTube video, 13:50, posted by “HenryBloggit,”  December 8, 2012, http://www.youtube.com/watch?v=WZYL6Gou-eE.

Petition for a Writ of Certiorari, Hollingsworth v. Perry No. 12-144. Web. Accessed June 25, 2013. http://www.supremecourt.gov/docket/PDFs/Brief_in_Opposition_of_Respondent_San%20Francisco.pdf.

Petition for a Writ of Certiorari, United States v. Windsor No. 12-307. Web. Accessed June 25, 2013. http://www.supremecourt.gov/docket/pdfs/brief_of_respondent_edith_windsor_%28jurisdiction%29.pdf.

Wikipedia, s.v. “Bipartisan Legal Advisory Group,” accessed June 25, 2013. http://en.wikipedia.org/wiki/Bipartisan_Legal_Advisory_Group.

Wikipedia, s.v. “California Proposition 8,” accessed June 25, 2013. http://en.wikipedia.org/wiki/California_Proposition_8.

Wikipedia, s.v. “Defense of Marriage Act,” accessed June 25, 2013. http://en.wikipedia.org/wiki/Defense_of_Marriage_Act.

Wikipedia, s.v. “Fourteenth Amendment to the United States Constitution,” accessed June 25, 2013. http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution

Wikipedia, s.v. “Hollingsworth v. Perry,” accessed June 25, 2013. http://en.wikipedia.org/wiki/Hollingsworth_v._Perry#Parties.

Wikipedia, s.v. “Same-sex marriage in California,” accessed June 25, 2013. http://en.wikipedia.org/wiki/Same-sex_marriage_in_California#History.

Wikipedia, s.v. “United States v. Windsor,” accessed June 25, 2013. http://en.wikipedia.org/wiki/United_States_v._Windsor.