Proposition 8

  • December 14, 2012
    Guest Post

    by Janson Wu. Wu is a staff attorney with Gay & Lesbian Advocates & Defenders (GLAD) in Boston and the recipient of ACS’s 2012 David Carliner Award. He is also co-counsel in two of the DOMA challenges (Gill v. OPM and Pedersen v. OPM). While those cases were not granted cert by the U.S. Supreme Court, he remains committed to doing whatever it takes to ensure that DOMA is no longer the law of the land.  


    The predictions surrounding the U.S. Supreme Court's decision last Friday to grant certiorari in two LGBT cases began long before conference day. For months, court-watchers wondered whether the Court would grant review in the Perry case challenging the constitutionality of California's Proposition 8, which limits marriage to straight couples. Or would the Court deny certiorari and leave the Ninth Circuit’s narrowly crafted decision intact, which overturned Proposition 8 only without inflicting collateral damage to the other 30 state constitutional amendments banning marriage for loving and committed gay couples.

    In contrast, many felt confident that the Court would review one of the four cases challenging the federal Defense of Marriage Act (DOMA).The trickier question was which case would the Court take.

    In the end, the Court agreed to hear the Proposition 8 case, and choose the ACLU’s Windsor case as its preferred vehicle for reviewing the constitutionality of DOMA.

    Now the real betting begins.

  • December 10, 2012

    by Jeremy Leaming

    Calling balls and strikes, is that what marriage equality will come down to? Arguably one of the more conservative Supreme Court’s in modern history has chosen to wade into a major equality battle, and its Chief Justice once said that judging is akin in some ways to being a baseball umpire.

    Of course since that statement during his confirmation hearings in 2005, the Roberts Court has dealt with matters far weightier than those found on a baseball field. The Court has also shown that judging is a good bit more complicated. Have you read all the opinions, concurring opinions and dissents in the Court’s actions this year on the landmark health care reform law?

    As The New York Times’ Adam Liptak notes public opinion in favor of same-sex marriage may be ahead of where a majority of the Roberts Court is on the matter. And, he notes that the high court’s decision to review both the Ninth Circuit Proposition 8 case and Second Circuit’s DOMA case “has some gay rights advocates bracing for a split decision.” Liptak says the high court could invalidate the so-called Defense of Marriage Act or DOMA on grounds that Congress overreached and strike the Ninth Circuit’s opinion on Prop. 8, holding that the Constitution does not require states to recognize same-sex marriages.

    Janson Wu, a staff attorney for Gay & Lesbian Advocates & Defenders (GLAD), noted some concern, telling ACSBlog, “The fact that the Court decided to hear both a challenge to DOMA and Proposition 8 presents obvious opportunities and risks. All of us fighting for LGBT rights obviously hope for the best case scenario and realize that there is so much work to make that happen. Now is not the time to wait and see how the Court decides. Instead, it is more important than ever for use to continue to achieve victories at both the state and federal level in the next few months, before the Supreme Court decides these cases.”

    While those pushing for marriage equality are rooting for the demise of DOMA, a blatantly discriminatory law that has treated same-sex couples as second class citizens denying them scores of federal benefits that their straight counterparts enjoy or take for granted, others are concerned about a potentially disastrous ruling in the Proposition 8 case.

  • December 7, 2012

    by Jeremy Leaming

    As widely expected the U.S. Supreme Court will wade into the battle for marriage equality announcing today it would consider the constitutionality of state and federal bars against same-sex marriage.

    The New York Times’ Adam Liptak noted that the Court’s docket now includes a lot of cases centering on “the meaning of equality ….” The high court’s docket already includes cases involving race-conscious university admissions policies and an integral enforcement provision of the Voting Rights Act.

    The high court will review a decision striking California’s Proposition 8, which yanked marriage equality rights from lesbians and gay men in the state, and an opinion from a federal appeals court that invalidated a provision of the so-called Defense of Marriage Act.

    Earlier this year, the U.S. Court of Appeals for the Ninth Circuit ruled that California’s Proposition 8 “served no purpose and no effect, other than to lessen the status and human dignity of gays and lesbians.” Writing for the majority, Judge Stephen Reinhardt said, “Proposition 8 worked a singular and limited change to the California Constitution: it stripped same-sex couples of the right to have their committed relationships recognized by the State with the designation of ‘marriage,’ which the state constitution had previously guaranteed them, while leaving in place all their other rights and responsibilities as partners – rights and responsibilities that are identical of those married spouses and form an integral part of the marriage relationship.”

    The high court also said it would review U.S. v. Windsor, a case out of the Second Circuit. Earlier in the fall, the U.S. Court of Appeals for the Second Circuit invalidated a provision of the so-called Defense of Marriage Act, a law enacted by the Clinton administration. The Obama administration announced earlier in its first term that it would stop defending DOMA in court. The Bipartisan Legal Advisory Group of the U.S. House of Representatives intervened to help defend DOMA.

  • July 9, 2012
    Guest Post

    By Mae Kuykendall, Professor of Law, Michigan State University, and Director of the Legal E-Marriage Project


    A federal court in Manhattan has entered a summary judgment in favor of Edith Windsor, a widow assessed an estate tax of $363,053 on her spousal inheritance. This sum was assessed because the federal government, pursuant to Section 3 of the Defense of Marriage Act (“DOMA”), deems her Canada-solemnized same-sex marriage nonexistent.

    This holding is the latest defeat for Congress’s 1996 handiwork. With the request by the Obama administration for certiorari to the First Circuit DOMA holding and to a Ninth Circuit DOMA scheduled for September oral argument, and with Prop 8 litigation potentially headed for high court review, Windsor nicely differentiates among the distinctive issues affecting same-sex marriage.

    In Windsor, a brief for intervenors for the U.S. House of Representatives argued that Congress could rationally conclude there is a federal interest in impeding “an unprecedented redefinition of our foundational social institution.” Judge Barbara Jones politely demolished this portentous pronouncement as support for federal law.

    The judge demonstrates that all-or-nothing arguments about same-sex marriage conflate separate questions. The intuition that a loud NO! is final masks the need for nuance. 

    With same-sex marriage, there are several obviously distinctive questions. First, must states affirmatively authorize same-sex marriage by issuing marriage licenses to couples? Second, may the federal government treat as null for federal law a state-created legal status affecting family relations? Third, to what extent are states required to afford recognition to legal statuses created outside the state by sister states? Fourth, what determines whether a state has recognized a given marriage, at a given time?  With differing questions, different factors are at work, and they demand multiple answers.

  • June 5, 2012

    by Jeremy Leaming

    The movement for marriage equality, part of a much more expansive effort to advance equality for the LGBT community, avoided a setback as a federal appeals court in San Francisco refused to reconsider its ruling from earlier in the year that invalidated California’s anti-gay measure Proposition 8.

    Proponents of Proposition 8, which barred same-sex marriages in the state, had urged the entire U.S. Court of Appeals for Ninth Circuit to review and reverse a three-judge panel’s February ruling. But a majority of the Circuit’s judges voted against reconsideration, the Los Angeles Times reported.

    In February, the Ninth Circuit panel ruled 2-1 that Proposition 8 “served no purpose and no effect, other than to lessen the status and human dignity of gays and lesbians.” Writing for the majority in Perry v. Brown, Ninth Circuit Judge Stephen Reinhardt said, “Proposition 8 worked a singular and limited change to the California Constitution: it stripped same-sex couples of the right to have their committed relationships recognized by the State with the designation of ‘marriage,’ which the state constitution had previously guaranteed them, while leaving in place all their other rights and responsibilities as partners – rights and responsibilities that are identical of those married spouses and form an integral part of the marriage relationship.”     

    Today, three of the Ninth Circuit’s judges lodged a dissent saying the full Circuit should have reviewed the panel’s opinion. The dissenters accused their colleagues of muzzling “respectful conversation” of same-sex marriage. “Even worse,” they continued, “we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it.”

    In its February opinion, Reinhardt (pictured) cited the Supreme Court’s Romer v. Evans opinion that invalidated Colorado’s effort to use state law to marginalize a group of people, namely gay men and lesbians. Reinhardt noted that in Romer, the high court said Colorado’s constitutional amendment preventing localities from implementing laws protecting lesbians and gay men from discrimination undermined equal protection principles, saying that it was “not within our constitutional tradition to enact laws of this sort,” which targets “a certain class of citizens for disfavored legal status.”

    Reinhardt also lamented the impact of Proposition 8, which yanked marriage equality rights from same-sex couples not long after the California Supreme Court ruled that the state’s constitution granted them the right to wed.