Gay Marriage

Supreme Court Review of Prop. 8 Could Have Huge Implications

Based on question of whether marriage access is a fundamental right


The Supreme Court has finally decided to take on same-sex marriage. In an announcement Friday, the court said it will hear two cases: One of them will determine the constitutionality of California's Proposition 8, a referendum that stripped same-sex couples of marriage rights in that state. The other involves the portion of the federal Defense of Marriage Act (DOMA) that prevents the federal government from recognizing same-sex marriages performed by the states. The risk here for same-sex couples is very great, as EJ Graff explains in a piece for The Advocate, because the two cases differ widely in scope and potential impact. (My colleague Dana Liebelson has a great explainer here.)

The DOMA case asks the justices to strike down the federal law that dictates which marriages are valid. Even better for supporters of same-sex marriage: Of the several DOMA cases the court could have taken, it decided on Windsor v. United States, in which plaintiff Edith Windsor was unable to claim an estate-tax deduction after her female partner died. Between striking down part of a heavy-handed federal statute and helping someone get a tax cut, it's the kind of same-sex marriage case even a conservative justice could love. Most importantly, from the point of view of getting the requisite five votes, striking down DOMA would not prevent states from banning same-sex marriage.