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Update on Same-Sex Marriage & The Supreme Court

After many weeks of speculation and several false alarms, on Friday the Supreme Court of the United States (SCOTUS) officially agreed to hear two appeals of cases related to gay marriage. The Court’s decision to grant these two petitions mean that next year is set up to be an incredibly important one for the gay community. Same-sex couples in California will undoubtedly be paying close attention to these matters, as they will have implications on many different issues, including long-term planning.

The Two Cases

The first case the Court agreed to hear is Hollingsworth v. Perry, which stems from California’s Proposition 8 measure that passed in 2008. Plaintiffs in the case sued alleging that the Proposition violated the U.S. Constitution’s Equal Protection Clause. A district court agreed, striking down the ban. A panel of the 9th Circuit U.S. Court of Appeals agreed that the Proposition was unconstitutional. However,
the ruling in the appellate decision was more narrow. Specifically, the appellate court found that the ban had to be stricken down because California once allowed gay marriage (for a short time) before taking the right to marry away. It was this removal of an existing right that triggered the constitutional violation, said the appellate court.

The second case that will be heard by the U.S. Supreme Court is United States v. Windsor which deals with the Defense of Marriage Act (DOMA). While the Proposition 8 case has direct bearing on the rights of California same-sex couples to be married, the DOMA case may have even more direct impact on long-term estate planning for these couples. That is because, regardless of a state’s decision to allow gay couples to marry, so-long as DOMA is in place, those couples have zero federal recognition. Things like Social Security benefits, estate taxes, and other issues are therefore different for married same-sex couples. However, depending on the SCOTUS decision in Windsor, DOMA may be struck down. That would open up various options for same-sex married couples.

Importantly, in both cases the SCOTUS added questions to consider regarding the “standing” of the parties appealing the lower decisions. Standing simply refers to the party’s right to bring the case at all.
This means that, if it chooses, the Supreme Court may dismiss the appeals on standing grounds–while not issuing a ruling on the actual merit of the cases. If it does that on either case, then there are different precedential standards for the appellate decisions. For example, if the DOMA case is dismissed for lack of standing, that may mean that the law is thrown out in the lower court’s jurisdiction, but not throughout the country.

What’s Next
Even though the Court announced its decision to hear these cases, a final resolution won’t come for months. Both cases will likely be argued in front of the Court in late March. After those hearings, the Court will then need a few months before reaching and writing decisions in the case. Those decisions will probably be announced near the end of June. It is only then that changes might take effect related to these issues.

In the meantime, one consequence of the SCOTUS decision to hear the Prop 8 case is that for the moment same-sex couples are still not able to be married in California. Had the Court rejected the petition of those appealing, then the 9th Circuit decision would have stood and gay couples in California would have been able to marry post-haste.

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