June 14, 2013
How the Court Could Rule on Same-Sex Marriage
NV
CA
CO
WV
DC
DE
MD
KY
MO
KS
UT
OR
WY
IN
OH
NJ
PA
IL
IA
NE
ID
WA
MT
MI
RI
MA
CT
WI
MN
SD
HI
FL
AK
VT
NY
ME
TX
GA
SC
AL
MS
LA
NM
VA
NC
TN
AR
OK
AZ
NH
ND
STATES AFFECTED
STATES AFFECTED
STATES AFFECTED
States that allow
same-sex marriage†
STATES AFFECTED
States with bans on
same-sex marriage*
NV
CA
CO
WV
DC
DE
MD
KY
MO
KS
UT
OR
WY
IN
OH
NJ
PA
IL
IA
NE
ID
WA
MT
MI
RI
MA
CT
WI
MN
SD
HI
FL
AK
VT
NY
ME
TX
GA
SC
AL
MS
LA
NM
VA
NC
TN
AR
OK
AZ
NH
ND
The ruling would apply
only to California
NV
CA
CO
WV
DC
DE
MD
KY
MO
KS
UT
OR
WY
IN
OH
NJ
PA
IL
IA
NE
ID
WA
MT
MI
RI
MA
CT
WI
MN
SD
HI
FL
AK
VT
NY
ME
TX
GA
SC
AL
MS
LA
NM
VA
NC
TN
AR
OK
AZ
NH
ND
States that allow civil unions or
broad domestic partnerships,
but not marriage
NV
CA
CO
WV
DC
DE
MD
KY
MO
KS
UT
OR
WY
IN
OH
NJ
PA
IL
IA
NE
ID
WA
MT
MI
RI
MA
CT
WI
MN
SD
HI
FL
AK
VT
NY
ME
TX
GA
SC
AL
MS
LA
NM
VA
NC
TN
AR
OK
AZ
NH
ND
The 1996 law is constitutional
It is powerless to decide the case
At a minimum, the plaintiff, Edith Windsor, wins her case and becomes entitled a tax refund of more than $363,000. Legal experts differ about the more general effect of a ruling that the Supreme Court lacks jurisdiction, but most agree that such a decision is unlikely and would, one way or another, effectively spell the end of the challenged part of the 1996 law.
The court could decide that it lacks jurisdiction because the two sides – the plaintiff and the Obama administration – agree the law is unconstitutional and House Republicans do not have standing to defend it.
The 1996 law is unconstitutional
Married same-sex couples in the twelve states that allow such unions, along with the District of Columbia, become subject to more than 1,000 federal laws and programs and start to receive federal benefits. The ruling has no direct effect on bans on same-sex marriage in other states.
United States v. Windsor, No. 12-307
Federal Benefits for Same-Sex Couples
The court will also decide whether a part of the federal Defense of Marriage Act of 1996 that defines marriage to be “only a legal union between one man and one woman as husband and wife” in determining federal benefits violates the Constitution’s equal protection clause.
How the court could rule
Strike down Proposition 8 on the grounds that ...
Decide that supporters of
Proposition 8 lack standing to appeal
Under this rationale, suggested in the Obama administration’s brief, bans on same-sex marriage in the seven states with everything-but-marriage civil unions and partnerships are unconstitutional.
... all bans on same-sex marriage violate the Constitution
Under this rationale, used by the federal appeals court in San Francisco to strike down Proposition 8, California would allow same-sex marriage but bans in other states would survive.
The court could decide that supporters of the ban lacked standing to appeal a trial court’s judgment striking it down. Legal experts differ on the precise legal and practical effect of such a ruling. But many say that the trial court’s decision would survive and that, either as a consequence of the decision or the actions of state officials, same-sex marriages in California would resume.
Uphold Proposition 8
States would remain free to allow or ban same-sex marriage.
... California was not entitled to withdraw a right to same-sex marriage once it had been established by the California Supreme Court.
... California was not free to provide same-sex couples with all the benefits and burdens of marriage through civil unions but withhold the designation “marriage.”
All laws prohibiting same-sex marriage around the nation fall.
How the court could rule
Hollingsworth v. Perry, No. 12-144
California’s Ban on Same-Sex Marriage
The court will decide whether Proposition 8, a California voter initiative that defined marriage as a union between a man and a woman, violates the federal Constitution.
Current practices are unchanged. Married opposite-sex couples continue to receive federal benefits and married same-sex couples continue to be denied them.