DOMA and Prop 8 in the Supreme Court: An Equality Cheatsheet


Holdin’ Court

Does Congress have the right to define marriage? Do voters? Is marriage a right guaranteed to every American by the Constitution?

These are the basic questions the Supreme Court justices will have to start asking themselves, if they’ve somehow neglected to do so already, starting this week when both DOMA and California’s Proposition 8 arrive at the highest chopping block in the land.

Even if you get the gist of the Defense of Marriage Act (as Bill Clinton apparently didn’t) and understand that, in spite of being plagued by double-negatives, Prop 8 clearly aims to always forever times infinity ban gay marriage (unlike Courtney Love and former San Francisco mayor Willie Brown) you might still be confused about what these cases making it to the Supreme Court actually means.

We at NewNowNext want you to head into what will be the most exciting, depressing, or disappointing week for gay marriage ever armed with all the knowledge you need to wow that annoying lady who works next to you and always tries to talk about gay stuff because she thinks that’s what she supposed to do.

“Did you catch the latest RuPaul’s Drag Race?” she’ll ask, while choking down Acitivia.

“Yes,” you’ll smile back. “Did you catch the latest coverage of oral arguments in United States v. Windsor?”

Consider this your equality cheat sheet.


The Defense of Marriage Act was passed with bipartisan support and signed by Bill Clinton in 1996. It strictly defined marriage, as far as the federal government was concerned, as “only a legal union between one man and one woman.”

At the time of its passage, no states allowed same-sex unions. Now, nine states and the District of Columbia allow same-sex marriage and there is more opposition to DOMA and support of same-sex equality as a whole than ever before. This is either ironic or just politics as usual.

Either way, the Defense of Marriage Act may soon deny its last same-sex couple a nod and a wink from Uncle Sam.

Unlike DOMA, Prop 8 was passed by voters and only covers the state of California. It denies the right of marriage to same-sex couples in that state.

Those arguing for the repeal of Prop 8 will be arguing that marriage is a right that should be extended to same-sex couples and all that the people do not have a right to vote such rights (the California Supreme Court granted same-sex couples the right to marry in 2008, prior to Prop 8’s passage) away from specific groups. Those arguing that Prop 8 should remain law will be fanatical blowhards.

United States v. Windsor and Hollingsworth v. Perry

With United States v. Windsor, 83-year-old New Yorker Edith Windsor has taken her issues with DOMA all the way to the Supreme Court.

Windsor married her longtime partner Thea Spyer in Canada in 2007 after being engaged for forty years. But when Spyer died in 2009, Windsor—whose marriage was not recognized by the federal government—was hit with $363,053 in federal estate taxes from her inheritance from Spyer. That’s the same she would have owed had she been willed the money from an aunt, third cousin, or a stranger.

Without DOMA or if she had been married to a man, how much would Windsor have owed the feds? $0.

You can see, then, why Windsor wants DOMA overturned.

The case of Hollingsworth v. Perry asks whether Prop 8 is constitutional. That is, whether the voters of California had the right to strip same-sex people of the right to marry.

Hollingsworth v. Perry was filed by two same-sex couples, including Kristin Perry and her partner Sandra Stier, who were denied marriage certificates because of Prop 8. In the other corner is retired California state senator Dennis Hollingsworth who, along with the goodly Yes on 8 folks at, are playing defense.

The case has also been known as Perry v. Schwarzenegger and Perry v. Brown, but neither the former governator nor governor-turned-attorney general-turned-governor Jerry Brown wanted anything to do with the defense in the case.

What to expect?

Nobody is expecting the cases, to be heard this coming Tuesday and Wednesday, to be anything short of monumental. But there are some things you should expect out of these cases and some things you should not.

Most importantly, though this depress many of you, neither case nor its ruling will likely affect the legality of same-sex marriage in the country as a whole.

In the Prop 8 debate, the justices can rule in several ways. They can uphold an earlier ruling in a lower court that struck down the measure, which would mean their ruling—even though they are the US Supreme Court—would affect only California.

They could also do what the Obama administration wants and rule that banning marriage in states with separate-but-equal civil union laws (Oregon, Nevada, California, Hawaii, Illinois, Rhode Island, New Jersey, Delaware) is unconstitutional because it specifically denies gay couples the right of marriage.

Rather unlikely is the possibility the court will deem it unconstitutional for any state at all to ban same-sex marriage.

In the DOMA case, bans on same-sex marriage will not be affected no matter what the ruling, which can go one of three ways.

The court could rule that DOMA is unconstitutional and begin extending federal benefits of marriage to the married gay residents of Washington, Iowa, Maine, New Hampshire, Vermont, New York, Connecticut, Massachusetts, Maryland, and DC.

It could also rule, though this is unlikely, that the court does not have the power to make a decision in this particular case.

The other possibility is that the court will uphold DOMA and screw us all.

No TV cameras are allowed in the court, but you’ll be able to listen to audio of the oral arguments in the Prop 8 case starting Tuesday at 1pm at and to the DOMA case starting Wednesday.