DOMA, Proposition 8 Decisions To Be Handed Down Tomorrow

Tomorrow will be the final day that the Supreme Court of the United States will sit for its current term, meaning all cases where decisions have not yet been handed town. That includes United States v. Windsor, the case dealing with the Constitutionality of the Defense Of Marriage Act, and Hollingsworth v. Perry, the case dealing with California’s Proposition 8 banning same-sex marriage. To say the least, these two cases will be the primary topic of discussion tomorrow and for days afterward.

I’ll have coverage of both decisions, and legal analysis of the same, here as soon as practically possible. In the meantime, feel free to make this an Open Thread for your discussion of what the Court will, and should, do in both cases. Here’s my guess at the outcome:

  • United States v. Windsor — DOMA’s Section Three tossed out in a decision that relies more on issues of Federalism than on Equal Protection;
  • Perry v. Hollingsworth — Case dismissed due to the fact that the party purporting to defend the law in Court does not have standing to do so. This means that the case gets sent back to the 9th Circuit, and same-sex marriage will become legal in California as soon as that Court lifts the stay it put on its ruling striking the law down pending appeal.

If you want to follow along with the news of the decisions, I recommend SCOTUSBlog’s excellent Live Blog, which generally starts at 9:00am Eastern Time.


FILED UNDER: Law and the Courts, Supreme Court, US Politics, , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. David in KC says:

    I think you are correct. Of course, the DOMA decision just sets up the next case for when someone gets married in one state and tries to get it recognized in a state that either has a law or a state constitution amendment that prohibits same sex marriage. You will have circuits with different decisions on it and SCOTUS will have to rule and it will hinge on equal protection. So they get to sidestep a real decision for a few more years.

  2. edmondo says:

    If the court “cannot rely on the past” in finding the VRA unconstitutional, can they use the same legal theory to fit DOMA?

  3. Scott says:

    One thing that has puzzled me is why has no one tried to repeal DOMA in its entirety. Is there not enough support for that? Anybody have any thoughts on that?

  4. @Scott:

    On September 15, 2009, three Democratic members of Congress, Jerrold Nadler of New York, Tammy Baldwin of Wisconsin, and Jared Polis of Colorado, introduced legislation to repeal DOMA called the Respect for Marriage Act. The bill had 91 original co-sponsors in the House of Representatives[62][63] and was supported by Clinton, Barr, and several legislators who voted for DOMA.[64] Congressman Barney Frank and John Berry, head of the Office of Personnel Management, did not support that effort, stating that “the backbone is not there” in Congress. Frank and Berry suggested DOMA could be overturned more quickly through lawsuits such as Gill v. Office of Personnel Management filed by Gay & Lesbian Advocates & Defenders (GLAD).[65][66]

    Following Holder’s announcement that the Obama Administration would no longer defend DOMA section 3 in court, on March 16, 2011, Senator Dianne Feinstein introduced the Respect for Marriage Act in the Senate again[67] and Nadler introduced it in the House.[68] The Senate Judiciary Committee voted 10–8 in favor of advancing the bill to the Senate floor, but observers believed it would not gain the 60 votes needed to end debate and bring it to a vote.[69]

  5. Gromitt Gunn says:

    DOMA struck down, 5-4 (well, the pertinent bits).

    The usual suspects dissented. It came down to Kennedy.

  6. David in KC says:

    And sounds like with a mix of federalism and equal protection. Will need to read it she. I get a chance. Prop 8 was kicked back to the 9th to dismiss for lack of jurisdiction. So the district court ruling will stand and Prop 8 is gone.

  7. David in KC says:

    I really shouldn’t post using my iPhone, my clumsy fingers mangled the above post.

  8. Sejanus says:

    In a five to four majority the Supreme Court has decided that the defense in the Prop 8 case had no legal standing to defend law. In doing so they managed to avoid dealing with the issue of whether or not gays have a constitutional right to marry while still legalizing marriage equality in California. While overturning the gay marriage ban is a good thing, I think that this decision is catastrophic, as now the executive authority can have any law it wants defended from judicial scrutiny simply be failing to defend it in the courts.

    The division of the court in this case is highly idiosyncratic: Roberts, Scalia, Breyers, Ginsburg and Kagan on the majority, with Alito, Thomas, Kennedy and Sotomayor dissenting.