On Thursday, February 28, 2013, President Obama urged the U.S. Supreme Court to overturn California’s Proposition 8 (“Prop 8”) and to give further scrutiny to other similar prohibitions around the country. Obama’s brief came on the heels of the Court’s December 7, 2012 decision to hear two constitutional challenges involving same-sex marriage.
The two challenges the Court will be hearing are Hollingsworth v. Perry and U.S. v. Windsor. Perry argues that the U.S. Constitution’s 14th Amendment (equal protection under the law) bars Prop 8 from defining marriage as being between a man and a woman. Windsor argues that Section 3 of the Defense of Marriage Act (“DOMA”) violates equal protection under the 5th Amendment of the Constitution as applied to same-sex couples who are legally married in their state. How the court decides on either Perry or Windsor will have major ramifications for the fight for same-sex marriage.
In the event the Court declares Prop 8 unconstitutional, the defense for prohibitions of same-sex marriage in other states will likely topple in quick succession. If the court declares DOMA unconstitutional, though, states would be required to recognize valid marriages performed in other states, including same-sex marriages. However, states would still be allowed to decide whether to recognize same-sex marriages performed within their own jurisdictions.
In the President’s February 28 brief, the administration wrote that “[Same-sex partners] establish homes and live together, support each other financially, share the joys and burdens of raising children, and provide care through illness and comfort at the moment of death.” While friends-of-the-court briefs like this are not legally binding, this may influence the Court to review the merits of Perry and Windsor and other measures restricting same-sex marriage.