The United States Supreme Court now is considering two types of cases that deal with marriage for gay and lesbian couples.  The first, which includes AFER’s federal constitutional challenge to Prop. 8, involves the right of gay and lesbian couples to marry under state law.  The second, which involves the so-called Defense of Marriage Act (DOMA), concerns the rights of gay and lesbian couples who are already married to have their unions recognized under federal law.

Anti-marriage laws have been struck down by three federal courts of appeals, five federal district courts, and one federal bankruptcy court.  These rulings have been signed by seven circuit court judges, seven district court judges, and twenty bankruptcy court judges.

Federal Marriage Cases: Overview and Status

The Prop. 8 Case

In 2008, California narrowly passed Proposition 8, a voter-approved initiative that amended the state’s constitution to take away marriage equality from gay and lesbian couples.

AFER brought together Ted Olson and David Boies, who faced each other in Bush v. Gore, to lead a federal constitutional challenge under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Due Process Clause protects individuals against arbitrary state intrusions into life, liberty or property. In other words, the government can’t withhold any particular right from anyone. The Equal Protection Clause requires that all laws must apply equally and impartially to everyone.

Proposition 8 violates both constitutional provisions because it singles out a group of people, those who are gay and lesbian, and denies them a fundamental constitutional right—the right to marry the person they love. Prop. 8 has been ruled unconstitutional by the United States District Court for the Northern District of California and the Ninth Circuit Court of Appeals. The Supreme Court will soon decide if it will weigh in on the constitutionality of Prop. 8. If they don’t, the Ninth Circuit’s landmark decision striking down Prop. 8 is made permanent and marriage equality is restored in California.

DOMA Challenges

The so-called “Defense of Marriage Act” was enacted in 1996. It has three parts:

• Section 1 says that the name of the law will be known as the “Defense of Marriage Act.”
• Section 2 deals with the power of the states. It says that no state has to recognize gay and lesbian couples who are married legally. So if a gay couple gets married in Massachusetts and travels to Nebraska, their marriage is not recognized in Nebraska.
• Section 3 prevents the federal government from recognizing gay and lesbian couples who are legally married in states with marriage equality. It precludes these couples from receiving over 1,000 federal benefits and protections including inheritance rights, the ability to file taxes jointly, and special benefits for the spouses of military service members.

Several legal challenges led by Lambda Legal, Gay & Lesbian Advocates & Defenders, the ACLU and the Commonwealth of Massachusetts target Section 3 exclusively, arguing that it violates the equal protection of the laws. Massachusetts argues that DOMA interferes with its powers as a sovereign state by interfering with its ability to have marriage equality and by requiring it to discriminate against married gay and lesbian couples in order to receive certain federal funds.

DOMA has been ruled unconstitutional by several federal district courts and by the First Circuit Courts of Appeals and the Second Circuit Court of Appeals.  Eight petitions for review of DOMA are currently pending before the Supreme Court.

If the cases are successful, married gay and lesbian couples living in a state with marriage equality (or Washington, D.C.) will be able to receive federal benefits. A Supreme Court ruling striking down Section 3 of DOMA will not require states to recognize or perform marriages for gay and lesbian couples.