Why the Supreme Court will kill DOMA and Prop 8

The Supreme Court will hear arguments on California's Proposition 8 and DOMA this month. They will overturn both. Here's why. Photo: AP

WASHINGTON, March 18, 2013 ― The Supreme Court will hear arguments on cases dealing with California’s Prop 8 and DOMA later this month. They will kill both. Here are the legal reasons why.

In the first case, two same sex couples sued the state of California, which denied them the right to marry. California’s Proposition 8 modified the state constitution and defined a valid marriage as only between a man and a woman. 

In the second case, a woman whose same-sex spouse died was made to pay inheritance taxes because the government, relying on Section 3 of The Defense of Marriage Act (DOMA), claimed the woman was not legally married, and thus could not take assets from someone she identified as her deceased spouse without incurring the taxes. The woman, Edie Windsor, was made to pay taxes. Two lower federal courts found the section unconstitutional and ordered a refund.

On March 26, 2013, the justices will hear arguments on what has been called the Proposition 8 Ban, California’s ban on same-sex marriage. In Hollingsworth v. Perry, the Supreme Court, barring a ruling effectively “kicking” the case because of a lack of the state’s “standing” to appeal, will determine the constitutionality of California’s ban. At issue is an interpretation of the Equal Protection Clause of the Fourteenth Amendment, which in part says:

No State shall … deny to any person within its jurisdiction the equal protection of the laws.

The constitutional argument in favor of striking down California’s ban will focus on the amendment’s text – “any person” ‒ and will then look at a long history of rulings from the Supreme Court that favor equal protection, meaning that discrimination is illegal if it considers race, sex, or any other group characteristics. The concept of equality under the law will be advanced to include the legal right to marry the person of one’s choosing.

READ MORE: A conservative argument for same-sex marriage

The concept of standing in the law means that a party (here, Hollingsworth) has a unique position of interest in the pending case. Arguments in favor of the ban will be that the Plaintiffs do not have standing, meaning that the Plaintiffs did not suffer any unique injury different than injuries potentially suffered by other California citizens. 

The argument in favor of standing provides that first, California has standing to sue to defend its law, and then, that California law allows it to delegate its authority to the Plaintiffs.

Once standing is established, I believe that the Court will declare Proposition 8 unconstitutional resulting in the sanctioning of same-sex marriage. The ruling will put an end to individual state efforts to deny same-sex unions and will require nationwide acknowledgment of these marriages.

On March 27, 2013, the Court will take up a case involving the constitutionality of the 1996 federal Defense of Marriage Act’s Section 3. The Act, in pertinent part, reads as follows:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

Thus, DOMA as applied denies federal marital benefits to legally married same-sex couples.  If the Court finds arguments concerning its authority to decide the case convincing, this matter as well may not be decided on its merits.

I believe the Court will find it has the authority to decide this case. A short non-legal reason is simply that the Court wants to decide the case. There are numerous reasons the Court can fashion to get there.

Once the Court says it can decide, I believe it will hold that the DOMA is unconstitutional.  In favor of this result, I believe the Court will look to long-standing principles of “equal protection,” and rule that the federal government is required to treat all similarly situated persons alike. 

The government’s argument has to include that there are “legitimate government objectives” allowing it to draw distinctions between individuals of opposite sex seeking to marry and those of the same sex seeking to do so.

There may well be many “legitimate” objectives identified by supporters of DOMA. None that I have heard or seen are “legitimate government objectives.” 

I believe the Court will determine that DOMA discriminates against gay and lesbian individuals. The Supreme Court has consistently ruled to secure equality under the law and forbid invidious discrimination.

An additional legal argument certainly will consider the Fifth Amendment, which forbids the federal government from enacting laws arbitrarily singling out a class of individuals for disfavored legal status. I believe the Court will rule here that the government cannot discriminate among individuals who are lawfully married on the basis of their sexual orientation.

If the Court declares DOMA unconstitutional, thus changing the definition of marriage in federal laws, the change will affect more than 1000 federal provisions, from tax returns and veterans’ benefits, to Social Security and health care, to housing and immigration.

By its rulings from these two cases, I believe the Court will sanction same sex marriage and fashion a social change with an impact similar to the 1973 decision in Roe v. Wade.

In an recent interview, David Boies, a nationally prominent attorney and one of the attorneys who will be arguing in the Proposition 8 case, drew parallels between the struggle for same-sex marriage and the fight for interracial marriage in the 1960s. Opposition to both, he said, comes from the “same reservoir of ignorance” about those involved. He said the USA has undergone a “tremendous” demographic shift in attitudes, especially among young people. “Unlike people of my generation, my children and my grandchildren have grown up living with, knowing people who were outwardly gay and lesbian. And they have learned that they’re just like us … And when you see that they’re just like us, the rationale for discrimination melts away.”

Boies predicts a 6-3 or a 7-2 verdict declaring Proposition 8 unconsitutional.

Yesterday, Senator Rob Portman (R-OH), formerly on record as opposing same sex marriage, said he is now a supporter. “I have come to believe that if two people are prepared to make a lifetime commitment to love and care for each other in good times and in bad, the government shouldn’t deny them the opportunity to get married.”

Same sex marriage clearly evokes emotional debate. The debate will soon be over.

READ MORE Leading Edge Legal Advice from Paul Samakow

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics.  Paul is the featured legal analyst on the Washington Times Radio, in Washington, D.C., on the Andy Parks show, the featured legal analyst for America’s Radio News Network, heard in 165 markets nationwide, and he is a columnist on the Washington Times Communities.

His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.


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Paul Samakow

Attorney Paul Samakow brings his legal expertise to the headlines from life and real-life experience to The Washington Times Communties. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980, with offices in Maryland and Virginia. 

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