Updates to our Terms of Use

We are updating our Terms of Use. Please carefully review the updated Terms before proceeding to our website.

Monday, February 26, 2024 | Back issues
Courthouse News Service Courthouse News Service

Gay Marriage Case to Face Extended Hearing

WASHINGTON (CN) - The Supreme Court granted an extended hearing Monday for one of the potentially groundbreaking cases on same-sex marriage set for later this month.

Set for a hearing on March 26, the court on Monday granted enlarged time and divided argument in the case United States v. Windsor.

The hearing will address both jurisdiction and the merits of whether the Defense of Marriage Act violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state.

Edith Schlain Windsor had challenged the 1996 law after she was forced to pay federal estate tax when her wife, Thea Spyer, passed away in 2009. Federal law provides an estate-tax exemption on spousal inheritance, but gay widows do not qualify for the exemption under DOMA.

Windsor and Spyer married each other in Canada and another jurisdiction where same-sex marriage is legal, and had been together in New York since 1963.

After a federal judge hearing Windsor's case struck down Section 3 of DOMA, the 2nd Circuit affirmed in June, finding that the law tramples on the rights of same-sex couples by denying them equal treatment.

Since the Justice Department said it would no longer defend DOMA in 2011, the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives retained counsel to appeal the decisions favoring Windsor.

A week after granting certiorari, the court appointed Cambridge, Mass.-based attorney Vicki Jackson to support the executive branch's opinion as amicus curiae. She will argue that DOMA is unconstitutional, that the court lacks jurisdiction and that BLAG lacks Article III standing in this case.

At the March 27 hearing, the court will hear jurisdiction arguments from Jackson for 20 minutes, from the solicitor general for 15 minutes and from BLAG for 15 minutes. On the merits, BLAG will get 30 minutes, the Solicitor General will get 15 minutes, and Windsor will get 15 minutes.

Windsor filed her brief on the merits on Feb 26, and jurisdiction brief was entered on Feb. 22.

BLAG addressed the merits on Jan. 22 and jurisdiction on Feb. 22. The United States also recently filed briefs on the merits and jurisdiction .

Nine states and the District of Columbia have legalized gay marriage to date, while 37 states defined marriage as a relationship between a man and a woman through state law or constitutional amendment, the National Conference of State Legislatures states.

The fight to revive gay marriage in California will also play out in the Supreme Court this month, with arguments on Hollingsworth v. Perry slated for March 26.

Gay marriage became illegal with the passage of voter-approved Proposition 8, but Chief U.S. District Judge Vaughn Walker struck the ban down in 2010, and the 9th Circuit affirmed in 2011. Nevertheless, gay marriage remains illegal in California until the Supreme Court finally resolves the case.

In its decision, the 9th Circuit said Prop. 8 "stripped same-sex couples of the ability they previously possessed to obtain from the state ... the right to obtain and use the designation 'marriage' to describe their relationships. Nothing more, nothing less."

ProtectMarriage.com, which sponsored Prop. 8 and took up defense of the law on appeal, had argued that legalizing gay marriage harms the state's interest in protecting traditional marriage and procreation.

In granting certiorari Friday, the Supreme Court limited its consideration to whether Sacramento-based conservative group has standing to defend the ban.

The city and county of San Francisco filed its brief on the case on Feb. 21. The gay couples opposed to the ban filed their brief the same day. The brief from ProtectMarriage.com came in November.

Categories / Uncategorized

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.