Same-Sex Marriage

Same-Sex Marriage in the United States

The Supreme Court’s Rulings on Proposition 8 and Defense of Marriage Act (DOMA)

By Erwin Chemerinsky, the dean of UC Irvine Law School.

The Supreme Court’s dismissing the challenge to (California) Proposition 8 on standing grounds had the practical effect that same sex couples in California can marry (Hollingsworth v. Perry).

In 2010 the federal district court in San Francisco declared Proposition 8 unconstitutional and issued an injunction against the Governor, the Attorney General, and other state officials from enforcing California’s ban against same-sex marriage. There was standing in the district court because it was a suit brought by two same-sex couples that wished to marry. But the Supreme Court said that there was not standing to appeal. This means that the district court ruling stands and Proposition 8 is enjoined. Same-sex couples can marry in California.

The Court’s decision striking down Section 3 of DOMA was narrow in the sense that it was focused on why a federal law denying recognition of same-sex marriage is unconstitutional (United States v. Windsor ). However, the Court declared only Section 3 of the Defense of Marriage Act unconstitutional. (Section 2 of DOMA, which says that no state has to recognize a same-sex marriage from other states, was not at issue before the Court.)

There still will need to be litigation as to state laws that prohibit same-sex marriage. But the reasoning in Justice Kennedy’s opinion – that the denial of recognition of same sex marriage reflects animus and serves no legitimate purpose – provides a basis for challenging state laws denying marriage equality.

Thus the case will lead to much more litigation as to state laws, but I think it is clear where the Court ultimately will go in holding that laws denying marriage equality deny equal protection. But it didn’t happen today.

Faith and Reason at the U.S. Supreme Court

By Douglas W. Kmiec, former U.S. Ambassador to Malta. He is the Caruso Family Chair in Constitutional Law and Human Rights at Pepperdine law school.

The Defense of Marriage Act would have been more forthrightly styled DODO or the Defense of Discrimination Ordinance; so too, as these few words will attempt to explain, neither Proposition 8 nor its opposition deserves the patronage of the Supreme Court. Amicus briefs are occasionally filed in support of neither party; here is why both sides are undeserving of complete support.

Faith and reason (fides et ratioequality and religious freedom.) are said to walk amicably side by side – often reinforcing if not holding one another up. The matter of same-sex marriage surely tests that axiom. Legal nuances aside, that which is perceived to be hurtful and demeaning sits uneasily with the prescription to “love our neighbor as ourselves.” Because I find this topic impossible to fully address without cross-referencing faith, I will be making note of the Catholic faith of which I am a believer (full disclosure: as a Reaganite-supporter of President Obama some of conservative Catholics have me on their “suspect” list; they’re mistaken, but that’s a different column).

All religions, Catholicism included, seek to reveal men and women to themselves; to be, in short, instructive of the truth of human nature. A constitution described by James Madison as the most sublime reflection of human nature should not conflict. How then is it possible to single out for legal and cultural scorn, people living out what faith and scientists concede is biologically determined? Reason would put faith in the dock for distorting human nature; faith accuses reason of contorting the meaning of equal protection.

Faith can be quite counter-cultural, as the command to love one’s enemies and to give preference to the poor testifies; so too, marriage in a divorcing culture. Is it noble or diabolical to wish all regardless of sexual orientation to know the beauty of a marriage hinged on a solemn promise of fidelity and mutual support?
Opponents of same-sex marriage claim procreation as justification. Gay and lesbian couples can and do adopt children who would otherwise have been abandoned or aborted. Many gay couples endure enormous expense and physical intrusion to secure the blessing of children.

Demographic studies do show Western populations to be declining. There are insufficient soldiers to fight our battles and inadequate laborers to sustain the safety net. Yet, does denying marital status remedy these shortages? And why exactly should a same-sex couple not have the same ability as traditional marriage partners to pass their hard-earned resources to a survivor without steep estate taxes?.

True, government has an interest in a legal definition of marriage that formally ties a sexually active, heterosexual male to the care of offspring. Yet, why again should same-sex couples endure disadvantage because some over-testosteroned men in heterosexual unions need to be leashed by a marriage certification to be fully accountable to what the culture and every father of the bride fully expects?.

The highly detailed, domestic partnership law democratically proclaims in California that as far as the needs of this state go, drawing distinction on the basis of sexual orientation is arbitrary or worse. Hoosiers or Show-Me Missourians or others with whistling teakettles might disagree, but that’s America.

And these differences of view go far deeper than some ho-hum policy dispute running us off the next fiscal cliff, since faith traditions matter greatly and they do differ, and if the Court is to not color outside the lines of religious freedom that fact is pivotal to recall. In my church, marriage is said to be inseparable from procreative possibility. Here, the church finds qualitative difference anchored in scripture and Magisterium as the Sacrament of Matrimony effaces husband and wife in favor of the newly created union, which, in theory at least, is indissoluble, and then a secure foundation for the first civilization of the family. Other religions raise less objection to divorce, but it’s not for the government to say who is right.

Which, by the way, is why DOMA is so wrong and likely headed for the dustbin; Congress had no constitutional warrant to prefer my orthodoxy and as much as I find real value in the Sacrament of Matrimony, unless I awake in the morning and discover the entire world to have been convinced of the fullness of Catholicism or similar belief (and hey, we’ve got a Jesuit coming to the mound in relief – as in “the sermon on the” – so anything can happen now. Nevertheless, the civil discussion of what counts as the rational extension of God’s creative plan should properly go for a good long while yet in church, synagogue, and mosque before it presumes a return outing in the public square.

It was more anxiety over our collective inability to simultaneously articulate the freedom of religion without seeming to heap insult on our gay and lesbian citizens that drove the passage of both the federal and state laws. Yet, no religion has need or entitlement to DOMA’s facial discriminations.

Those loud misleading voices that deployed faith to provoke anger or hate stooped to the same “below the belt” tactics (there I go again) as those same-sex advocates who unmindfully and unnecessarily mocked religious belief, or ignored its sweeping diversity. These nettlesome cultural warriors deserve nothing more from the justices than a good faith (pun yet again intended) effort to clean up their respective messes. After that, let the people, not the Supreme Court, decide how best to live (gee, even “to pursue happiness”) as a matter of religious freedom.

Bottom line: DOMA is a goner and the president could reasonably see his duty as not including its defense. The usual 5-4 handicapping of the Court makes Prop. 8 too close to call, but if upheld, the Court should write narrowly – not just because it would be deferring to direct democracy, but because in this instance its task is to preserve both equality and religious freedom.

In the United States Constitution

According to the Encyclopedia of the American Constitution, about its article titled “SAME-SEX MARRIAGE”, in the American legal order, religious institutions do not define marriage. Civil marriage is a contractually based legal status recognized by national, state, and local governments for many purposes, to which countless privileges attach. (read more about Constitutional law entries here).

Same-Sex Marriage, Sexual Behaviour and the Law

See Also

  • Marriage Laws
  • Defense of Marriage
  • Healthy Marriage
  • Federal Marriage Amendment
  • Same-sex Divorce
  • Cohabitation
  • Sexual Battery
  • Gays
  • Marriage
  • Lesbians

Further Reading

Same-Sex Marriage: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Same-Sex Marriage. This part provides references, in relation to Same-Sex Marriage, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Same-Sex Marriage by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Same-Sex Marriage and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Same-Sex Marriage or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Same-Sex Marriage and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Same-Sex Marriage. Finding these decisions can be challenging. In many cases, researchers about Same-Sex Marriage should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Same-Sex Marriage when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

*This resource guide is updated frequently. However, if you notice something is wrong or not working, or any resources that should be added, please notify us in any of the "Leave a Comment" area.

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