Supreme Court to Decide Same-Sex Marriage Issues

HUGE news from the trenches of human rights warfare:

This afternoon Bloomberg reported that, for the first time, the Unites States Supreme Court will address issues pertaining to same-sex marriage.

SCOTUS will take issues related to the Defense of Marriage Act (DOMA) and California’s same-sex marriage, which has seemed like a yo-yo the way it has been illegal, legal, illegal, quasi-legal, etc.

Courts that have ordered same-sex marriage in their states have done so pursuant to the Equal Protection Clause of the 14th Amendment to the US Constitution. State constitutional amendments that conflict with the US Constitution are unenforceable, so if the Supremes decide that the Equal Protection Clause applies, all those states with marriage bans based on gender will be forced to comply.

When this happened with racial integration of public schools, the National Guard had to be called out. Let’s hope that the American people are more willing to embrace change nearly sixty years after the Central High crisis.

About Anne

Civil rights activist Anne Orsi is one of the spokespeople for the Arkansas Society of Freethinkers and is the primary organizer of Reason in the Rock, a conference on science, secularism and skepticism. Got a question? Email her at She's a lawyer but may not be licensed in your state. Sending her an email or reading her blog posts does not create an attorney-client relationship. Find Anne on Twitter as @aramink, and read her regular blog at

  • John Eberhard

    This is huge….if the SCOTUS doesn’t decide to now duck and dodge behind “standing”. Sure hope DOMA gets heightened scrutiny.

    • Anne

      All it takes for a plaintiff to have standing to challenge the constitutionality of a statute is for the statute to apply to him. A homosexual couple will do, for both of these cases. Unless standing was an issue in the lower courts – I’ll check to see if it was – these cases should be good to go on their merits.

      And, yes: This is HUGE.

      Now, back to our regularly scheduled programming…

      • Randomfactor

        I personally think SCOTUS will deny standing in the Prop 8 case, and the primary impact of their having “heard” the case will be to delay marriage equality in California for another seven months– that being the only douchebag move Scalia and Company could come up with.

  • Ken

    Standing is a little weird in the DOMA case. The Obama administration filed cert before the Circuit case had been decided. In favor of the administration. Can someone who won a Circuit case appeal the ruling? I understand there is also a private citizen with standing in that case (Mrs. Edith Windsor), but I didn’t see where the Supreme Court mentioned her or her exact situation when asking for arguments in the DOMA case.

    And, of course, instead of the administration defending the law, we have the Bipartisan Legal Advisory Group. It’s a bit of a mess in terms of standing and could be used as an excuse for the court to back away from a broad reaching decision in one form or another.

  • John Eberhard

    Yes, what Ken and Randomfactor said on standing. It isn’t the plaintiff to whom I was referring, it was to those defending DOMA and Prop 8. It isn’t the Justice Dept. on DOMA nor is it the California governor and attorney general on Prop 8. I think the defendant on Prop 8 is, and their standing seems (to me) to be questionable. I also believe that defending DOMA is the House of Representatives, and it seems that I have read there is a question as to THEIR right to defend it.

    You’re the expert, Anne, and I bow to your wisdom on this…..but, I wasn’t referring to plaintiff and perhaps that makes a difference. Please shine the light of your insight on this part of the question of standing. Thank you. I am so glad you are helping JT with the technical legal aspects of issues. Go you.

  • Trevor Britton

    My understanding is that if everything goes through, the best that will happen is it will be unconstitutional to ban same sex unions.

    Yet this is a big step forward. And im confident that the pendulum that is the supreme court will swing towards justice next summer

  • Ken

    Here’s a good summary of some of the standing issues in both cases:

  • John Eberhard

    Excellent article, Ken. Thank you.

  • Silent Service

    Odds on, the SCOTUS will rule narrowly on the issue of standing in the Prop 8 case against the defense team. That will leave Prop 8 overturned and the SCOTUS off the hook on the broader issue of same sex relations.

    They will rule that the US House Republicans does have standing as government agents, but will overturn parts of DOMA that allow the Federal Government to limit marriage rights stating that the right to define marriage is a state right and not a federal right. This will again allow SCOTUS to avoid making a ruling on the broader issue of same sex marriage. This will create a situation where marriage is legal in individual states and that the Federal Government must recognize all legally approved state marriages.

    SCOTUS rarely makes broad rulings on a subject until well after the public has come to accept it. Roberts won’t change that pattern.