DECEMBER 12, 2012
Supreme Court to Hear Defense of Marriage Act Challenges in 2013
It’s official: The Supreme Court announced last week that it will take up the Defense of Marriage Act (DOMA) this term.
As we previously noted, the High Court was almost certain to hear one or more of these cases after two federal circuit courts struck down DOMA as a violation of equal protection and since the Court almost invariably grants review when a major piece of federal legislation is struck down on constitutional grounds.
Federal circuit courts of appeals are not bound by the decisions of the other circuits; thus, for the sake of uniform application of the law across the circuits, the justices need to determine the constitutionality of DOMA.
Congress passed DOMA by an overwhelming bipartisan majority in 1996 in response to a Hawaii Supreme Court decision that held that the denial of a marriage license to a same-sex couple was subject to strict scrutiny under the state’s constitution. Strict scrutiny, Justice Lewis Powell once quipped, is “strict in theory, but fatal in fact,” since nearly all laws subject to strict scrutiny have been struck down.
The portion of the law under attack is Section 3, which defines “marriage” as a union between one man and one woman—but only for purposes of federal programs and funding. DOMA leaves each state free to decide whether to recognize same-sex marriages for purposes of that state’s laws, but it provides in Section 2—which has not been challenged—that no state is required to give effect to another state’s recognition of same-sex marriages.
The primary issues the Court will evaluate in Windsor v. United States is what level of scrutiny applies to equal protection challenges in this context and whether the proffered rationales for DOMA satisfy that level of scrutiny. The three levels of review are strict scrutiny, intermediate or heightened scrutiny, and rational basis review, which we previously detailed. While the Second Circuit applied intermediate scrutiny in Windsor, every other court that has considered the issue has applied rational basis review.
In February 2011, Attorney General Eric Holder announced that the Justice Department would no longer defend the constitutionality of DOMA—although it would continue to enforce it—and that, in its view, same-sex unions warranted “heightened scrutiny.” Consequently, the House of Representatives hired former Solicitor General Paul Clement to defend DOMA in pending cases.
Although the briefing and argument schedule has not been set, given the Court’s current docket, it could hear oral argument as early as March and issue a decision by the end of June.
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Moore v. Madigan:
The Second Amendment and the States Case
Yesterday, in a major win for Second Amendment rights, the U.S. Seventh Circuit Court of Appeals threw out Illinois’s virtual ban on the carrying of any guns. While the state of Illinois claimed that there was no historical evidence of a “generally recognized private right to carry arms in public," the appeals court concluded that self-defense “is as important outside the home as inside.”
Read the rest of the story >> |
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