JURIST - Paper Chase: Supreme Court receives opening briefs in same-sex marriage cases

[JURIST] The US Supreme Court [official website] received briefs in two separate cases on Tuesday defending the constitutionality of laws that define marriage as strictly between one man and one woman. The first case, Hollingsworth v. Perry [docket; cert. petition, PDF], examines the validity of Proposition 8 [JURIST news archive], a California referendum that revoked same-sex marriage rights. In their brief [text, PDF] in support of the law, a group of California citizens argued that they have standing to defend the law that the governor and state attorney general declined to defend in court. They further argued that the court should find the law to be a constitutional exercise of state marriage regulation. In the second case, United States v. Windsor [docket; cert. petition, PDF], the court will examine the constitutionality of Section 3 of the Defense of Marriage Act (DOMA) [text; JURIST news archive]. In its brief [text, PDF], the Bipartisan Legal Advisory Group (BLAG) urged the court not to raise the constitutional standard of evaluation for laws that unequally impact gay and lesbian individuals. BLAG argued, however, that even under a heightened standard of scrutiny, DOMA is constitutional. The court will also consider in this case if BLAG had standing to intervene and if the DOJ's refusal to defend the law deprives the Supreme Court of jurisdiction, but these issues were not addressed in Tuesday's brief.

The court granted certiorari [JURIST report] in the two cases last month. Both cases could have an important impact on the ongoing same-sex marriage [JURIST backgrounder] controversy in the US. In early December Washington Governor Christine Gregoire certified the results of Referendum 74 [JURIST report] which legalized same-sex marriage in the state. In the same time frame, the Coalition for the Protection of Marriage, a non-profit corporation in Nevada which opposes same-sex marriage, petitioned the US Supreme Court [JURIST report] to grant certiorari to determine whether the Fourteenth Amendment's Equal Protection Clause requires Nevada to change its definition of marriage from the union of a man and a woman to the union of two persons. In November, the office of the Maryland Attorney General released an opinion [JURIST report] stating that same-sex couples can obtain marriage licenses, allowing Maryland to become the ninth US state to allow same sex marriage after Maine and Washington [JURIST reports] enacted similar measures in November.