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On the Supreme Court Docket: Marriage?

The U.S. Supreme Court begins its new term on Monday, October 1.  Marriage advocates are waiting to see if the Court will choose to take up the Defense of Marriage Act (DOMA) or even the issue of gay marriage more broadly. 

Petitions are pending for a number of cases with the institution of marriage in their sights. For example, in Windsor v. United States, an 83-year-old lesbian from New York argues that DOMA violates her equal protection rights under the Fifth Amendment to the Constitution. DOMA, which defines marriage as between one man and one woman in federal law and which allows states to make their own individual decisions on the matter for state law, has been in effect since 1996 when President Bill Clinton signed it. However, a number of challenges to DOMA, like Windsor, have arisen in recent years, and last year President Obama unilaterally decided the Executive Branch would no longer defend it in court, forcing the U.S. House GOP to pick up the slack. Senator Dianne Feinstein (D-CA) is also leading a legislative effort to repeal DOMA.

Another case the Supreme Court could consider is Hollingsworth v. Perry, which is a challenge to California’s Proposition 8, passed by California voters in a 2008 referendum, which defines marriage as the union between a man and a woman. That popularly enacted state marriage law is being attacked on the grounds of the Equal Protection Clause of the Fourteenth Amendment.

Supreme Court Justices meet weekly to determine what cases they will accept or reject. No announcement has been made yet, but one Justice believes marriage will come before the Court soon. Speaking at the University of Colorado last week, Justice Ruth Bader Ginsburg declined to answer a question about equal protection arguments relevant to DOMA, stating, "I think it’s most likely that we will have that issue before the court toward the end of the current term."

  • Find out more about these petitions before the Supreme Court.
  • Find Justice Ginsburg’s statement relevant to marriage.

By Aaron Mercer, Vice President Government Relations

Published: September 28, 2012