This week promises to drive much attention to the U.S. Supreme Court, as the nine justices will hear oral arguments Tuesday and Wednesday on a pair of same-sex marriage cases that have drawn the eyes and ears of legal observers across the country.
On Tuesday, the justices will hear oral arguments in Hollingsworth v. Perry, which involves a challenge to Proposition 8, which was a voter-approved referendum that outlawed same-sex marriages in the California. The following day, arguments will be heard in U.S. v. Windsor, a case in which the federal Defense of Marriage Act (“DOMA”) has been challenged as being unconstitutional based on it defining marriage between a man and a woman only. In both cases, the parties advocating on behalf of same-sex marriage allege their rights to equal protection of the laws, as well as due process, under the Fourteenth Amendment have been violated.
The attorneys at Dalton & Tomich have extensive experience in state and federal courts protecting the equal protection and due process rights of persons and entities in the context of land use litigation. We will be closely monitoring these cases and their potential impact on equal protection and due process rights from the perspective of land use matters. If you believe your rights to equal protection or due process have been violated in relation to land use or property matters, please contact us.
Hollingsworth involves a challenge to Proposition 8, a ballot initiative that California voters passed in November 2008 that held that marriage could only be between members of the opposite sex. The ballot initiative came months after the California Supreme Court invalidated state statutes that defined marriage as being only between a man and a woman. Months after Proposition 8 passed, a number of gay couples who were denied marriage licenses filed challenges to the law, saying it violated the Equal Protection Clause of the 14th Amendment, and deprived them of due process.
The current and prior governors of California have chosen not to defend the constitutionality of Proposition 8. Instead, ProtectMarriage.com, which was the original party behind the passage of Proposition 8, has intervened to defend its constitutionality. Ted Olson and David Boies, the same attorneys who faced off in Bush v. Gore, are jointly representing the same-sex marriage advocates.
The DOMA case involves an interesting legal situation. The federal law was passed in 1996 and defined marriage as between one man and one woman. A New York woman sued in federal court challenging the constitutionality of DOMA and its definition of marriage. The U.S. District Court and the Second Circuit Court of Appeals found DOMA to be unconstitutional, in violation of the Equal Protection Clause of the Fifth Amendment. Noteworthy was the Second Circuit’s conclusion that homosexuals have been subject to a history of discrimination, which led to a more rigorous review of DOMA and ultimately its invalidation.
Apart from the constitutional issues, the DOMA case is particularly interesting because, in 2011, the Obama Administration announced that it would not defend the constitutionality of DOMA. As a result, the Republican members of Congress, through the Bipartisan Legal Advisory Group (“BLAG”), are defending the law. However, one of the central legal issues to be argued Wednesday will be whether BLAG even has standing to defend DOMA in the government’s stead. BLAG has Paul Clement, one of the preeminent litigators in the nation, as its lead attorney.