Mountain Law: Does one man, one woman violate rights of gays, lesbians? |

Mountain Law: Does one man, one woman violate rights of gays, lesbians?

Noah Klug

The Supreme Court will hear oral argument this week on the question of whether laws requiring that marriage be between a man and a woman violate the constitutional rights of gays and lesbians. What are the cases specifically about?

There are actually two cases before the Supreme Court, each presenting different issues. The first case, Hollingsworth v. Perry, involves the constitutionality of California’s Proposition 8, which amended the California Constitution to say that marriage must be between a man and a woman. As background, the California Supreme Court found in 2008 that the California Constitution created a right of marriage for all couples, including gays and lesbians. California voters then passed Proposition 8 in 2010 to specifically deny gays and lesbians the right to marry. Two same-sex couples challenged in federal court whether Proposition 8 violates the United States Constitution. The trial court found that Proposition 8 violated the right to marry and also violated equal protection by taking away rights from only one class of citizens, same-sex couples. The defendants in the case, who were a number of state officials such as the California governor, declined to appeal the trial court’s ruling (thereby evidencing their support for gay marriage and striking down Proposition 8). Supporters of Proposition 8 then successfully gained permission to appeal the case in place of the true defendants. The supporters lost the appeal at the 9th Circuit and appealed again to the Supreme Court.

At issue in the first case, then, is whether citizens can ban gay marriage by amending the state constitution. Before the Supreme Court can even reach that issue, it will need to decide whether the supporters of an initiative can appeal it when the defendant state officials decline to do so. In legal speak, the question is whether the Proposition 8 supporters have “standing” to bring an appeal when they suffered no direct injury as a result of the trial court decision. (For more on this issue, see my May 11, 2011, column titled “Understanding Standing”).

The second case, United States v. Windsor, pertains to a federal statute called the Defense of Marriage Act (DOMA) that defines marriage as between a man and a woman for purposes of federal laws. In the case, a lesbian couple met in 1963 and lived together in a committed relationship for 40 years. They were married in Toronto in 2007. When one partner died, the survivor was required to pay $363,053 in estate tax, which she would not have been required to pay were the couple considered married under DOMA. She brought suit challenging the constitutionality of DOMA, and the Obama administration refused to defend the case (i.e., it refused to argue that DOMA was constitutional). The Bipartisan Legal Advisory Group of the House of Representatives (BLAG), following a party-line vote, obtained permission to defend the case in place of the executive branch and, after losing at trial and on appeal to the 2nd Circuit, appealed again to the Supreme Court.

The second case is, therefore, about whether the legislative branch can define marriage as it did in DOMA. Like the first case, the second case presents a threshold issue of standing as to whether BLAG can defend a case in place of the executive branch. It also presents issues of equal protection, namely whether DOMA can deny benefits to gay and lesbian couples that are enjoyed by opposite-sex couples.

The Supreme Court could make a sweeping ruling for or against gay marriage that would apply in all states, or it could make limited rulings that would apply only in the cases at issue.

After this week’s oral argument, the dramatic actual decisions will likely come this summer.

Noah Klug is owner of The Klug Law Firm, LLC, in Summit County. emphasizing real estate, business and litigation. He may be reached at (970) 468-4953 or

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