The Supreme Court's treatment of same-sex marriage in United States v. Windsor and Hollingsworth v. Perry: analysis and implications.

• Author: Entin, Jonathan L.

INTRODUCTION

For many years, gay rights advocates focused primarily on overturning sodomy laws. The Supreme Court initially took a skeptical view of those efforts. In 1976, the Court summarily affirmed a ruling that upheld Virginia's sodomy law. (1) And a decade later, in Bowers v. Hardwick, (2) the Court not only rejected a constitutional challenge to Georgia's sodomy law but ridiculed the claim. (3) That precedent lasted less than two decades before being overruled by Lawrence v. Texas. (4)

Meanwhile, the effort to secure legal protection for gay rights expanded to other issues. For example, in Romer v. Evans, (5) the Supreme Court struck down a state constitutional amendment that repealed all existing laws and policies prohibiting discrimination on the basis of sexual orientation because the amendment was based on illegitimate animus against an unpopular group. (6)

More significantly, same-sex couples began to seek the right to marry. They won a preliminary victory in Hawaii, where the state supreme court held that a ban on same-sex marriage was subject to strict scrutiny. (7) Although the Hawaii case was short-circuited by the adoption of a constitutional amendment allowing the state to limit marriage to opposite-sex couples, (8) the prospect that other states and the federal government might have to recognize same-sex marriages performed in Hawaii prompted Congress to enact the Defense of Marriage Act (DOMA) in 1996. (9) Some courts, relying on state constitutional provisions, did strike down bans on same-sex marriages. (10) One of those decisions came from California, (11) where the voters responded by passing Proposition 8 to amend the state constitution to limit marriage to opposite-sex couples. (12)

Litigation challenging the constitutionality of Proposition 8 and of DOMA reached the Supreme Court last term. In Hollingsworth v. Perry, (13) the Court held that the proponents of the California amendment lacked standing to appeal a lower court ruling that struck down the Golden State's ban on same-sex marriage after state officials declined to do so. (14) In United States v. Windsor, (15) the Court held that section 3 of DOMA, (16) which defines marriage for federal purposes as open only to opposite-sex couples, was unconstitutional. Both of these decisions were 5-4 rulings, although the votes did not fall along the same lines: the majority in Windsor, the DOMA case, consisted of the four more liberal justices joined by Justice Kennedy, who wrote the opinion, while the four more conservative justices dissented; (17) the majority in Hollingsworth v. Perry consisted of Chief Justice Roberts and Justice Scalia, from the conservative wing, and Justices Ginsburg, Breyer, and Kagan from the more liberal side, while the conservative Justices Alito and Thomas as well as the liberal Justice Sotomayor joined Justice Kennedy's dissent.

The divisions within the Supreme Court and the intensity of the public debate about same-sex marriage led the editors of the Case Western Reserve Law Review to organize a symposium in October 2013 to discuss the Court's decisions and their implications. This issue contains papers presented at that symposium. Participants included a wide range of legal scholars, social scientists, and other commentators. Several broad themes pervaded the program: doctrinal matters such as the implications of these rulings for federalism and equal protection, the role of the...