Court to Hear California Prop 8, DOMA Challenges

By Pete Winn | December 7, 2012 | 6:17pm EST

Protesters for and against the same-sex marriage bill protest in the halls at the Capitol in Albany, N.Y., Monday, June 20, 2011. / AP Photo/Hans Pennink

( - The U.S. Supreme Court said late Friday afternoon that it will hear two cases – Hollingsworth v. Perry and Windsor v. United States -- challenging the constitutionality of the federal Defense of Marriage Act (DOMA), and challenging whether a homosexual federal judge was right to overturn California’s Proposition 8 definition of marriage as the union of a man and a woman.

The National Organization for Marriage (NOM) praised the justices for agreeing to take both cases -- but especially for taking the California case.

“We are pleased that the Supreme Court will review lower-court decisions that invalidate the judgment of the U.S. Congress to define marriage as one man and one woman,” National Organization for Marriage Chairman John Eastman said.

The Hollingsworth case, which was filed in 2009 by Ted Olson and David Boies, argues that California's Proposition 8  initiative violated the U.S. Constitution by barring homosexuals from marrying.

Proposition 8, which was approved by California voters in 2008, restricts “marriage” to mean the union of one man and one woman.

In 2010, federal District Judge Vaughn Walker of San Francisco declared the law unconstitutional, arguing that it violated the Constitution’s Equal Protection Clause. Walker subsequently publicly revealed his homosexuality.


“The trial court in San Francisco—in a trial presided over by a homosexual judge involved in a long-term same-sex relationship—invalidated Prop 8, finding for the first time in American history a right to same-sex marriage under the 14th amendment to the U.S. Constitution,” Eastman said.

“It's not the job of federal judges to substitute their views for the policy judgments of the people's duly elected representatives. We believe the U.S. Supreme Court will overturn this exercise in judicial activism and stop federal judges from legislating from the bench on the definition of marriage. We're confident the Court will uphold DOMA,” he said.


The federal DOMA, which was passed by a bipartisan majority in Congress in 1996 and signed into law by President Clinton, does two things – 1) it defines, for federal purposes, that marriage is the union of one man and one woman and 2) it bars states from being forced under the Constitution’s Commerce Clause to accept same-sex marriages performed in any other states.

Only the section defining marriage in federal laws is being contested.

In 2011, Attorney General Eric Holder in formed Congress that President Obama had directed the Justice Department not to defend the DOMA statute in court.

Mathew Staver, president of Liberty Counsel and dean of the Liberty University Law School, told that justices "pretty much had to take the DOMA challenge."

Staver said that justices may issue a “blockbuster” ruling and decide the issue of same-sex marriage. However they also could decide to “punt” the issue.

“The justices added two questions regarding standing on both of those cases that could allow them to avoid the entire issue,” Staver told

“They both involve standing – whether Proposition 8 backers have standing in this case, and whether the legislature (Congress) has standing to defend the Defense of Marriage Act.”

Staver explained: “In California, after the district court ruled, the California attorney general refused to appeal the case, so the backers of Proposition 8 appealed the case. That’s how it got all the way to the U.S. Supreme Court.

“In the federal Defense of Marriage Act case, the U.S. Attorney General [Eric Holder] refused to defend the case – that’s how the legislative branch [The U.S. House of Representatives] got involved in defending it.

“Now if the Court finds that there’s no standing in each case, what that means is that the Court of Appeals decisions would be set aside and the only remaining decisions that would still be in effect would be the district court decisions

“For California Proposition 8, that means only the Northern District of California would be affected – two-thirds of California would not be affected by that decision – and certainly not the rest of the states.

“For the DOMA case, only the southern part of New York would be affected. The rest of New York would not be affected.

“So bottom line,  the Court can either address this issue in a blockbuster way, and decide whther the Constitution actually grants same-sex marriage, which I don’t think it does --- or the Court could decide to punt both these cases and have very limited impact and save this issue for another day.”

Currently, nine states and the District of Columbia have laws creating same-sex marriage. More than 20 other states have state DOMA laws or constitutional amendments barring same-sex unions.

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