PROP 8: Hollingsworth v. Perry

Hearing: March 26

HOW WE GOT HERE:

Gay couples gained marriage rights in California in 2008 thanks to a ruling by the California Supreme Court. But in November 2008, the state’s voters approved Proposition 8, which amended the California Constitution to only recognize marriage between and a woman.

A district court judge ruled the measure violated federal guarantees of Due Process and Equal Protection.

A three-judge panel of the Ninth Circuit Court of Appeals upheld that ruling on the narrower grounds that California, having granted same-sex couples all of the legal rights of marriage, could not provide a legitimate reason for revoking an existing right.

The case was brought by two gay couples represented by the American Foundation for Equal Rights. Prop 8 is being defended by supporters of the measure after the California governor and attorney general refused to argue in favor of it.

PROP 8 Scenario 1: Narrow ruling  

Supporters of Proposition 8 don’t have standing to appeal the lower court’s decision and bring the case to the Supreme Court.

Therefore, the lower court ruling striking down Prop 8 would stand. This would allow California same-sex couples to marry, or, a few analysts say, could be so narrow as to only allow the two plaintiff couples to marry. Lambda Legal’s Jon Davidson finds the latter scenario unlikely, believing a ruling on standing would ultimately allow same-sex couples to resume marrying in California.

What it would mean for Georgia: While it would be wonderful for Californians to be able to marry, this would not create immediate change in Georgia. Still, California is the nation’s most populous state, so it would increase visibility for gay married couples.

PROP 8 Scenario 2: Narrow ruling  

It is unconstitutional for California to give gay couples the right to marry, then take that right away, while still affording all of the state benefits of marriage, just under a different name.

This is the argument used by the Ninth Circuit Court of Appeals to uphold the district court ruling overturning the law. Prop 8 essentially created an exception to the Equal Protection Clause of the California Constitution, which the high court could hold is a violation of the federal Equal Protection Clause.

What it would mean for Georgia: Since same-sex couples have never had the right to marry in Georgia, this would not have an immediate effect here. This would not immediately create marriage rights in any state besides California, but it could help deter similar voter referenda trying to revoke same-sex marriage where it is already legal.

PROP 8 Scenario 3: Medium ruling  

“Eight state” solution: You can’t give all the rights of marriage but just not call it marriage.

California offers domestic partner benefits with all state rights of marriage; similar structures exist in Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.

What it would mean for Georgia: Georgia does not offer any benefits of marriage, and in fact explicitly denies them, so this would not create any new rights here. But it would mean a lot more states would have to allow gay couples to marry. Some experts are concerned that a ruling like this could make it harder to make incremental change for same-sex couples, as some states might be willing to approve civil unions but not marriage, which this type of ruling could prohibit.

PROP 8 Scenario 4: Big ruling, big loss

Prop 8 is legal.

This would mean that a federal constitutional claim for the ability to marry could not be brought, but it would not revoke the marriages of same-sex couples who are already married in states where it is legal and it would not prevent other states from legalizing same-sex marriage.

What it would mean for Georgia: A ruling in favor of Prop 8 could empower voters in other states to try similar measures. Georgia already has a state constitutional amendment banning gay marriage, but this would mean a federal challenge to Georgia’s amendment would be off the table. We would have to wait for the amendment to be repealed or wait for the members of the Supreme Court to change before bringing another case. As Lambda’s Jon Davidson says, it could create “a generation of delay.”

PROP 8 Scenario 5: Big ruling, big win

Same-sex couples have a constitutional right to marry.

This ruling could be framed either that we share in the right to marry the court has already said exists in the Constitution, or the court could hold that there is no adequate reason to treat gay people differently than heterosexuals under the Equal Protection Clause.

What it would mean for Georgia: That would mean gay couples would be able to marry in Georgia starting sometime after June, although it might take a lawsuit to force the state to comply.

DEFENSE OF MARRIAGE ACT: Windsor v. United States

Hearing: March 27

HOW WE GOT HERE:

This case targets Section 3 of DOMA, which holds that the federal government will not recognize marriage except between one man and one woman. It was brought by New York resident Edith Windsor, who married her wife, Thea Spyer, in Canada in 2007.

After Spyer died in 2009, Windsor owed federal inheritance tax of more than $360,000; had they been heterosexual spouses, the inheritance would not have been taxed.

Represented by the ACLU, Windsor won at the district court level; although she had already petitioned the Supreme Court to hear the case, she also won in the Second Circuit Court of Appeals. DOMA is defended by the Bipartisan Legal Advisory Group, a committee led by Republicans from the U.S. House of Representatives, after President Obama’s Justice Department refused to defend it.

DOMA Scenario 1: Narrow ruling  

The Supreme Court could rule that either the Department of Justice or Bipartisan Legal Advisory Group did not have standing to appeal the case after the district court victory.

The Department of Justice petitioned the Supreme Court to hear the case even though their position won in the lower court. The Bipartisan Legal Advisory Group, a committee of Congress members, stepped in to defend DOMA when the Department of Justice refused to argue in favor of the law.

The Supreme Court could rule that either the DOJ or BLAG did not have standing to appeal the case after the district court victory. This would mean that the U.S. District Court for the Southern District of New York’s ruling that Section 3 of DOMA is unconstitutional stands, but it would apply only to Windsor or only in the Southern District of New York.

What it would mean for Georgia: Georgia is not part of the Southern District of New York, so section 3 of DOMA would remain intact here. This could be an incentive for same-sex couples who have the financial means to relocate to that area of New York.

Since the requirements for the federal benefits of marriage are worded differently in different parts of the law, it could mean that gay couples outside of that district could marry there to get at least a few rights. Lambda’s Jon Davidson lists the possibility that a Georgia resident who is part of a bi-national couple, where the other partner is not a US citizen, might be able to marry there for immigration purposes.

DOMA Scenario 2: Medium ruling

Experts don’t see any “medium-size” rulings as likely possibilities in this case.

DOMA Scenario 3: Big ruling, big loss

DOMA Section 3 is constitutional.

The federal government can continue to deny same-sex married couples the 1,000+ federal benefits that come with marriage.

What it would mean for Georgia: This would keep the status quo — no same-sex couples currently get federal marriage benefits — but would be a serious setback because it could take years to overcome, either through federal legislation repealing section 3 of DOMA, which doesn’t seem likely any time soon, or through another Supreme Court case after the make-up of the court changes.

DOMA Scenario 4: Big ruling, big win

The federal government can’t discriminate against legally married couples just because they are of the same sex.
This means married, same-sex partners would recieve federal benefits in states where marriage is already legal and in states where it may eventually become legal.

What it would mean for Georgia: Same-sex couples who live in states where marriage is legal could marry there and get federal benefits, but it becomes more complicated for couples who live in states like Georgia that don’t recognize their marriages.

Some federal laws refer to your state of residence, some refer to whether the marriage was legal in the state where you entered it, and some just say “marriage” without specifying, and all of that would need to be figured out. This could create an incentive for Georgia couples to move to states where they could legally marry, or to marry outside Georgia with the hope of gleaning a few benefits here.

 

Top photo: California gay couples Kris Perry and Sandy Stier (left) and Paul Katami and Jeff Zarrillo sued to overturn Prop 8, the ballot measure that ended same-sex marriage in the state. (Photos via AFER)

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