By Jorge R. Delgado 
On March 26 and 27, respectively, the United States Supreme Court heard oral arguments in a pair of cases touching on the hot-button issue of same-sex marriage.  In Hollingsworth v. Perry (Perry II), the Court will decide the fate of Proposition 8, which states that “[o]nly marriage between a man and a woman is valid and recognized in California.”  In United States v. Windsor (Windsor II), the Court could have the chance to weigh in on the validity of Section 3 of the Defense of Marriage Act of 1996 (“DOMA”), which similarly states that “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.”

The Ninth Circuit Court of Appeals in Perry v. Brown (Perry I), 671 F. 3d 1052  (9th Cir. 2012) cert. granted, 133 S. Ct. 786 (U.S. 2012) (definitively stated that “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California . . . .”)  Id. at 1063.  But as broad as that sentiment reaches, the court struck down Proposition 8 on rather narrow grounds born, coincidently, of California’s reaction to DOMA.  When DOMA was enacted, California codified its own “mini-DOMA,” but also created a “domestic partnership” designation that granted same-sex couples virtually all benefits that heterosexual couples enjoy, save the title of “marriage.”  The California Supreme Court, however, held that the segregation of that title violated California’s due process clause and equal protection clause.  In re Marriage Cases, 43 Cal. 4th 757 (Cal. 2008).  Proposition 8 sought to overturn that decision,  Whether the Supreme Court will likewise travel down this narrow road, or tackle the broader question of whether gay couples have the same right to marry under the United States Constitution as heterosexual couples, remains to be seen.
In Windsor v. United States (Windsor I), 699 F.3d 169, 175 (2d Cir. 2012), cert. granted, 133 S. Ct. 786 (2012), the Second Circuit Court of Appeals held that Section 3 of DOMA could not survive intermediate scrutiny, rejecting many often stated bases for the law: the need for a uniform definition of marriage, fiscal conservatism, preservation of the traditional understanding of marriage and encouragement of responsible procreation.  But before the Supreme Court delves into those merits, it will have to decide whether it can even consider the case.  Questions remain as to whether President Barack Obama’s administration (which disagreed with DOMA and won below) can appeal the decision, and whether the House GOP leaders have Article III standing to defend DOMA.  The Court appointed an amica to consider these questions, and her recommendation was to deny review of the case.
Worthy of note, the business community has taken a definite interest in the outcome of DOMA, with 278 employers—including Google, Goldman Sachs, Nike and Facebook—filing an amicus brief in support of Ms. Windsor.  These business interests argue that DOMA has imposed undue burdens on them by affecting workplace benefits, straining employer/employee relations, and raising administrative costs.  Whether the apparent effects of DOMA on the business community will sway the Justices is, again, yet to be seen.
The full version of this article was originally published in CABA Briefs Spring 2013.  To read the full version of this article, click here:
http://www.cabaonline.com/pdf/CABA%20Briefs_Springr_2013_web.pdf