Supreme Court Review 2017/2018 TERM



Terminology Note: We use the term "gay rights" here interchangeably with "LGBT rights" because it is a more accurate term to describe the issues in many of the cases below, which do not directly address bisexual and transgender rights. While the most frequently used term in the cases below is "homosexuals," we opted for a term ("gay") more common in today's parlance.

Gay rights issues have a long history before the Supreme Court, but many of the fundamental rights sought by gay rights groups have yet to be won. Indeed, it is likely that the Supreme Court will decide at least one major gay rights case this term.

Gay Media (First Amendment)

Until the late 1950s, gay newspapers, magazines and literature could be considered obscene and confiscated. In 1954, for instance, the U.S. Post Office declared ONE Magazine, a publication dedicated to homosexuals, obscene. That meant that when sent through the U.S. Mail, the publication was subject to confiscation and the sender could be prosecuted for a criminal act. ONE Magazine sued the Postmaster of the City of Los Angeles, but lost at both the district court level and before the Ninth Circuit Court of Appeals.

Prior to 1957, the Supreme Court applied the Hicklin standard (derived from an 1868 English case, Regina v. Hicklin), which defined "obscene" as material that tended to "deprave and corrupt those whose minds are open to such immoral influences." Many famous works of literature were banned based on this standard, which considered the effect certain portions of the works could have on children. In 1957, the Supreme Court abandoned this definition in the landmark case of Roth v. United States, and adopted a different standard of obscenity – "whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest."

The next year, in 1958, the ONE Magazine case made it to the Supreme Court. The Court summarily reversed the decisions of the courts below, citing Roth v. United States. While the decision lacked an opinion, the outcome was a major victory for gay rights advocates since publications like ONE Magazine were now legal.

Criminal Sodomy Laws and the Right to Privacy

Until 2003, consensual sex between same-sex individuals was considered a crime in many states, even when it occurred in the privacy of one's home. In the 1800s, some states punished citizens convicted of sodomy by denying them the right to vote. In 1970, the state of Connecticut denied a driver's license to a man because "[he] is an admitted homosexual and [] his homosexuality makes him an improper person to hold an operator's license."

The Supreme Court first considered criminal sodomy laws as applied to homosexuals in 1986. In Bowers v. Hardwick, the Court considered a suit brought by an Atlanta man, Michael Hardwick, who was arrested by Atlanta police when they found him in the bedroom of his apartment engaging in consensual sex with another man. Both men were arrested for sodomy. Hardwick lost at the district court level but won before the Eleventh Circuit Court of Appeals. By the time Hardwick's case reached the Supreme Court, 24 States and the District of Columbia had enacted criminal penalties for sodomy performed in private and between consenting adults.

The Supreme Court in a 5-4 decision reversed the Eleventh Circuit, holding that the constitutional right of privacy did not extend to private, consensual homosexual sodomy. The majority framed the issue as "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy." Citing a long history of criminal sodomy laws, Justice White, writing for the majority, announced, "to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious." The majority equated homosexual sodomy with "adultery, incest, and other sexual crimes even though they are committed in the home." Justices Blackmun, Brennan, Marshall, and Stevens dissented.

Hardwick remained in effect for 17 years. Nevertheless, in the years after the Hardwick decision, several states repealed their sodomy laws or declared them unconstitutional under their state's constitution. In 1998, Georgia struck down the very law at issue in Hardwick as a violation of the Georgia State Constitution's right to privacy.

In 2003, with only two of the justices that decided Hardwick still on the Court (Rehnquist and O'Connor), the Supreme Court revisited the issue of private, consensual homosexual sodomy in Lawrence v. Texas.

In Lawrence, Houston police, responding to a fraudulent report of a weapons disturbance made by an ex-lover, entered the home of John Lawrence and found him engaging in a consensual sexual act with another man. The police arrested the men and charged them under a Texas criminal sodomy law titled "Homosexual Conduct." Before a Texas trial judge, the two men asked the trial court judge to dismiss the charges against them as a violation of the Fourteenth Amendment's Equal Protection Clause. The trial judge denied their request. After pleading "no contest," the defendants were convicted and fined $200 each. 

On appeal, a three-judge panel of the Texas Fourteenth Court of Appeals declared the law unconstitutional. An en banc panel of the appellate court, however, reversed the ruling of the three-judge panel. The Texas Court of Criminal Appeals, the highest criminal appellate court, refused to grant review to the case. By the time Lawrence reached the Supreme Court only 13 states still criminalized sodomy, but it seemed unlikely that the Court would overrule Hardwick

On June 26, 2003, the Supreme Court issued its decision in Lawrence, holding 6-3 that the Texas Homosexual Conduct statute was unconstitutional. Justice Kennedy authored a five-justice majority opinion in which he took the Hardwick Court to task for framing the issue far too narrowly ("whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy"). Rather, Justice Kennedy wrote, the issue was properly framed as "whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution."

Justice Kennedy reasoned that the act of intercourse itself could not be isolated and separated from the context in which it occurs. Instead, "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring." Therefore, in seeking to prohibit homosexual sodomy, the State effectively exerted control over a personal relationship, mandating a particular moral code in a private realm of life reserved to the individual under the Fourteenth Amendment's Due Process clause. Justice Kennedy finds support for this proposition in the Court's 1992 majority opinion in the abortion case Planned Parenthood v. Casey:

It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. . . .

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Justice Kennedy further noted that a law prohibiting homosexual sex had an effect beyond the prohibition of the act itself. Such a law stigmatized the entire homosexual relationship such that it invited discrimination against homosexual persons in the public private spheres.

While he acknowledged that early Americans did not approve of homosexual conduct, Justice Kennedy noted that it was not until the 1970s that homosexuals were singled out for special treatment in state sodomy statutes. Furthermore, "[i]nstead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals."

Justice O'Connor, who had joined the majority in Hardwick, filed a concurring opinion. While she refused to join the majority opinion in overruling Hardwick, she agreed that the Texas law was invalid. She believed, however, that the constitutional infirmity rested in the Equal Protection Clause and not the Due Process Clause. She argued – as the Hardwick Court had held – that the Constitution does not guarantee a right to engage in sodomy. However, the Equal Protection Clause prohibited States from targeting a particular group for special treatment. Therefore, under Justice O'Connor's analysis, only those sodomy laws that singled out homosexuals for special treatment were unconstitutional.

Justice Scalia, joined by Justices Rehnquist and Thomas, dissented, accusing the majority of "sign[ing] on to the so-called homosexual agenda." Justice Scalia noted that:

It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.

By prohibiting the State from legislating a moral code, Justice Scalia continued, the Court "effectively decrees the end of all morals legislation." Furthermore, the exact same logic contained in the majority opinion could be used to legalize same-sex marriage:

If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct . . . what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

Justice Scalia also addressed Justice O'Connor's Equal Protection argument, countering that homosexual sodomy laws did not single out anyone since both men and women could be guilty of the prohibited homosexual conduct.

Justice Thomas filed a separate dissenting opinion, in which no other dissenting justice joined, expressing his view that the Texas law was "'uncommonly silly'" and should be repealed. But, Justice Thomas writes, "I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated [since] I can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy."

Discrimination and Equal Protection

While gay rights advocates have won significant First Amendment and privacy cases before the Supreme Court, their Equal Protection challenges have met with limited success. As of yet, the Court has found no constitutional right to be free from discrimination based on one's sexual orientation.

In 1985, the Supreme Court denied certiorari in the case of Rowland v. Mad River Local School District, in which a jury found a high school guidance counselor had been fired based solely on an informal conversation in which she told her secretary and some fellow teachers that she was bisexual. Justices Brennan and Marshall dissented from the denial of certiorari, noting that this would have been a good opportunity to consider the rights of homosexuals in employment under the First Amendment and the Fourteenth Amendment.

In 1988, the Supreme Court decided two cases involving employees dismissed for disclosing homosexual conduct, but avoided consideration of the merits of the employees' claims. In Webster v. Doe, a covert electronics technician at the CIA was dismissed for voluntarily informing the agency that he was a homosexual. And, in Carlucci v. Doe, a cryptographic material control technician at the National Security Agency was dismissed for disclosing that he had engaged in homosexual relationships with foreign nationals. In both cases the Court held that Congress entrusted the heads of the intelligence agencies with special discretion to terminate employees in the interests of national security.

While federal legislation, the Civil Service Reform Act of 1978, protects federal employees from being discriminated against on the basis of their sexual orientation, no private employee counterpart exists. Title VII of the Civil Rights Act applies only to race, color, religion, sex and national origin.

Many states, however, do provide such rights. Currently, 21 states prohibit private employers from discriminating based on sexual orientation. These states also prohibit such discrimination in housing and public accommodations. A public accommodation is a private entity that invites the public in (such as restaurants, hotels, theaters, doctors' offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers). Some states apply public accommodations laws even more broadly. The Supreme Court has considered two cases involving state public accommodation laws that prohibit discrimination based on sexual orientation.

In Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995), the private organizers of Boston's St. Patrick's Day Parade refused entry to GLIB (the Irish-American Gay, Lesbian, and Bisexual Group of Boston), who wished to celebrate their Irish heritage as openly gay, lesbian, and bisexual individuals and to show that there are such individuals in the community. The group sued the parade organizers, the South Boston Allied War Veterans Council, resulting in a court order requiring the organizers to permit GLIB entry in the parade under Massachusetts' public accommodation law. After this decision was affirmed by the Supreme Judicial Court of Massachusetts, the organizers appealed to the Supreme Court.

In a unanimous decision by Justice Souter, the Court held that the First Amendment prohibited the State from requiring the private organizers to include an expressive message in their parade that they did not wish to include. The Court found especially relevant the fact that the organizers would have permitted GLIB members to march as individuals and that GLIB could have applied for their own parade permit. Therefore the Court concluded, there was no risk that the organizer's act of denying GLIB entry would "silence the voice of competing speakers" (as would a cable operator's decision not to permit a program provider access to subscribers, for example). 

GLIB had argued that Massachusetts had one of the oldest St. Patrick's Day Parades in the nation, and it was administered by the State until 1947 when it transferred control to a private group of war veterans. Furthermore, they had argued, the parade consisted of 20,000 individuals and was watched by up to 1 million people. Therefore, GLIB was being denied access to a unique public event. However, their arguments failed to persuade the Court.

Five years later, in Boy Scouts of America v. Dale (2000), the Court considered whether New Jersey's public accommodations law required the local Boy Scouts chapter to reinstate a scout leader, Dale, who had been fired after the Boy Scouts learned he was gay. At the time he was dismissed, Dale had been an "exemplary" scout leader for 12 years. In a 5-4 ruling, the Court applied Hurley to hold that while New Jersey's public accommodations law forbidding sexual preference discrimination did apply to the Boy Scouts, in this case it had been applied in a way that violated the Boy Scouts' First Amendment freedom of association. 

The Court pointed out that the Boy Scouts had long avowed a policy of excluding homosexual scout leaders from the organization. After Dale was dismissed, the Boy Scouts issued a clarifying policy statement, stating: "We believe that homosexual conduct is inconsistent with the requirement in the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed, and that homosexuals do not provide a desirable role model for Scouts." Dale argued that no part of his scout leadership included discussions of sexuality in any capacity and no part of the Boy Scouts purpose was to direct its members on the subject of sexuality. Rather, he argued that, the Boy Scouts specifically discouraged its leaders from disseminating any views on sexual issues. Therefore, the Boy Scouts should not be able to invoke the First Amendment to justify firing him.

The Court held, however, that the First Amendment did apply. In order to be protected by the First Amendment one need not explicitly disseminate a certain message but "must merely engage in expressive activity that could be impaired in order to be entitled to protection" (emphasis added). The Court further noted that, in any case, the Boy Scouts had taken a position with regard to homosexuality in seeking to avoid the issue of sexuality from arising altogether. The Court distinguished the Boy Scouts from Rotary Clubs that were forced to admit women under public accommodations laws since in those cases "the evidence fail[ed] to demonstrate that admitting women to Rotary Clubs [would] affect in any significant way the existing members' ability to carry out their various purposes."

Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, dissented. They argued that "when the State interferes with individuals' selection of those with whom they wish to join in a common endeavor, freedom of association . . . may be implicated[, but the] right to associate for expressive purposes is not . . . absolute; rather, the nature and degree of constitutional protection afforded freedom of association may vary depending on the extent to which . . . the constitutionally protected liberty is at stake in a given case."

The dissent noted that while the Boy Scouts' position on homosexuality was communicated in internal memoranda, it was not tied to any publicly expressed values of the organization. The manual for scout leaders specifically instructs, "do not undertake to instruct Scouts, in any formalized manner, in the subject of sex." And in response to the question, "Should a professional or non-professional individual who openly declares himself to be a homosexual be terminated?" the manual answers, "Yes, in the absence of any law to the contrary. At the present time we are unaware of any statute or ordinance in the United States which prohibits discrimination against individual's employment upon the basis of homosexuality. In the event that such a law was applicable, it would be necessary for the Boy Scouts of America to obey it." Therefore, Justice Stevens argued, the Boy Scouts planned for a day when the law might change.

Furthermore, the dissent found no difference between cases requiring "young men's organizations" to include women and the Dale case. The Court had required those organizations to abide by anti-discrimination laws despite their publicly stated exclusionary policies. Finally, the dissent further distinguished this case from Hurley, arguing that while in Hurley, GLIB, wanted to impart a message by participating in the parade, the terminated scout leader here, Dale, did not seek to make a statement at all, but simply to continue his employment. The Court has not considered an LGBT workplace discrimination case since Dale.

State Constitutional Amendment

In 1996, the Court considered a 1992 amendment to the Colorado State Constitution ("Amendment 2"), enacted by a general election voter initiative, that prevented any government entity in Colorado from enacting or enforcing any law seeking to protect or cure discrimination against homosexuals. The Colorado state courts declared Amendment 2 unconstitutional, applying strict scrutiny under the Fourteenth Amendment because it "infringed the fundamental right of gays and lesbians to participate in the political process." On appeal to the Supreme Court, the State's principal argument in support of Amendment 2 was that it only denied "special protection" to homosexuals so as to put homosexuals on the same footing as everyone else.

In a 6-3 decision, in Romer v. Evans (1996), the Supreme Court soundly rejected the state's arguments and ruled that Amendment 2 violated the Equal Protection Clause. Justice Kennedy authored the six justice majority opinion, explaining that the Colorado amendment, rather than placing homosexuals on equal footing, placed them in a "solitary class" and imposed a special disability on them alone, since homosexuals now had a special obstacle in their path to seeking protection from discrimination. Justice Kennedy, quoting Justice Harlan's dissent in Plessy v. Ferguson, noted that the Constitution "neither knows nor tolerates classes among citizens." Justice Kennedy continued:

It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. . . . A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.

Justice Scalia, joined by Justices Rehnquist and Thomas, "vigorously" dissented. Justice Scalia argued that Amendment 2 was little more than a "modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores." Justice Scalia cited Bowers v. Hardwick, which ten years earlier upheld criminal sodomy laws directed at homosexuals. Justice Scalia noted, "If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct." Unbeknownst to Scalia, Bowers would be overruled four years later in Lawrence, in which Scalia – again joined by Justices Rehnquist and Thomas ­– would dissent once again.

Limited Public Forum

In 2010, in Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, the Court decided a case concerning a student group at the Hastings College of Law that was denied recognition by the school as a official student group, which would have permitted it to use school funds and facilities, because the group failed to meet the requirements of the school's Non-Discrimination Policy. Specifically, the group, the Christian Legal Society ("CLS"), refused entry to "unrepentant homosexuals" and students who hold religious convictions different from those in the group's Statement of Faith. CLS sued the school arguing that forcing the group to accept all students into its group would impair its First Amendment rights to free speech, expressive association, and free exercise of religion since it would be forced to accept members who do not share the organization's core beliefs about religion and sexual orientation.

In a 5-4 decision, the Supreme Court rejected the student group's arguments, holding that in the special First Amendment circumstance of a school environment – a limited public forum – the school could ensure that school resources were available to all students and could enact a viewpoint-neutral all-comers policy that applies to all student groups without drawing any distinctions based on their messages or perspectives. The Court distinguished Dale since here the student group could opt out of official recognition and continue to exclude members as it saw fit, whereas in Dale the Boy Scouts would have had no option other than to include Dale in their organization.

Justice Alito, joined by Justices Roberts, Scalia and Thomas, dissented, arguing that while an all-comers policy may be viewpoint neutral, the school's Non-Discrimination Policy, which was actually employed to exclude CLS from official recognition, was not viewpoint neutral. Rather, they argue, the policy worked to impose a specific viewpoint and exclude groups like CLS that disagree with that viewpoint. The dissent accused the school of later justifying its actions by interpreting its Non-Discrimination policy as an all-comers policy. In doing so, the all-comers policy acted as a mere pretext for imposing its viewpoint on CLS.

Martinez was the last gay rights case to be heard by the Court.

Gay Marriage

This term, for the first time, the Supreme Court has agreed to hear two cases considering the constitutionality of laws limiting gay marriage. The last time a divisive marriage issue was before the Supreme Court was in 1967 when the Supreme Court decided Loving v. Virginia, striking down a law prohibiting interracial marriage in Virginia. At the time Loving v. Virginia was decided, only 20% of Americans approved of interracial marriage. Today, 50% of Americans approve of gay marriage. However, in 1967, only 16 states had anti-miscegenation laws in place. Today, 39 states have anti-gay marriage laws.

The Supreme Court has said many times in the past that marriage is a fundamental right. There are only a handful of rights the Supreme Court has chosen to be fundamental – for instance, the right to marry, the right to vote, the right to bear children, and the right of a citizen to travel between states. When dealing with government restrictions on a fundamental right, the Supreme Court typically applies strict scrutiny, which is the most difficult standard to overcome. Under the strict scrutiny test, a law may survive strict scrutiny only if it serves a "compelling" governmental interest and is narrowly tailored using the least intrusive means to serve that interest. 

The most recent marital rights case to be heard by the Supreme Court was in the 1987 case of Turner v. Safely, in which the Supreme Court held that prison inmates have the right to marry. In Safely, however, the Court decided that strict scrutiny would not apply because prisoners had limited rights because of their unique situation. Therefore, the Court applied the less stringent, "reasonable relationship" test. Still, the Court found for the inmates. 

On December 7, 2012, the Court made history by granting review to its first gay marriages cases - United States v. Windsor and Hollingsworth v. Perry. 

Hollingsworth v. Perry concerns the right of gay couples in California to marry after the passage of Proposition 8, a November 2008 voter referendum that amended the California State Constitution to read: "Only marriage between a man and a woman is valid or recognized in California." The California Supreme Court held that while Proposition 8 was a valid initiative under California law, it would not invalidate the 18,000-plus same-sex marriages that had been performed in California prior to its passage.

In the lawsuits before the federal courts, the State of California (under both Governor Schwarzenegger and now Governor Brown) refused to defend the law. Accordingly, the federal courts permitted the proponents of the amendment to intervene in the lawsuit to defend the law. In August 2010, Judge Vaughn Walker of the United States District Court for the Northern District of California ruled Proposition 8 unconstitutional under the Due Process Clause since he found no compelling state interest to justify denying same-sex couples the fundamental right to marry. Furthermore, he found it unconstitutional under the Equal Protection Clause since he found no rational basis for limiting the designation of 'marriage' to opposite-sex couples. The state officials named as defendants in the case refused to appeal the ruling to the Ninith Circuit. Instead, the intervenor-defendants (the initiative proponents) appealed the ruling to the Supreme Court.

On appeal, a divided three-judge panel of the Ninth Circuit Court of Appeals affirmed 2-1 the judgment of the District Court, finding that Proposition 8 was a violation of the Equal Protection Clause. The Court explained, "the Equal Protection Clause requires the state to have a legitimate reason for withdrawing a right or benefit from one group but not others, whether or not it was required to confer that right or benefit in the first place." According to the Ninth Circuit panel, "moral disapproval of a group" is not a legally sufficient reason under the Equal Protection clause to justify singling out a group for disparate treatment. The panel did not consider the District Court's holding that the Due Process Clause was also violated, finding that the violation of the Equal Protection Clause alone justified the invalidation of the statute. The intervenor-defendants again appealed the ruling; this time, to the Supreme Court. Ted Olson and David Boies, former US Solicitor Generals, a Republican and Democrat respectively, joined forces to represent the gay rights groups in Perry.

In United States v. Windsor, the Second Circuit declared Section 3 of the 1996 federal Defense of Marriage Act ("DOMA") unconstitutional. Section 3 reads: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

Plaintiff Edith Windsor seeks a refund of $363,053 in federal estate taxes after the death of her same-sex spouse, who she married in Canada in 2007. They had been same-sex partners for more than 40 years. While New York did not issue marriage certificates to same-sex couples until after Ms. Spyer’s passing, New York would have recognized her valid Canadian marriage certificate. However, while New York State would permit Edith Windsor to file joint tax returns, DOMA prevents same-sex married couples from filing joint federal tax returns, prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits, and also leaves federal employees unable to share their health insurance and certain other medical benefits with same-sex spouses. It was estimated that more than 100,000 couples in the United States were affected by DOMA.

On June 6, 2012, the federal District Court for the Southern District of New York ruled that Section 3 of DOMA violated the Equal Protection Clause (via the Fifth Amendment) because there was no rational basis to support it. A divided three judge panel of the Second Circuit Court of Appeals affirmed, applying intermediate scrutiny, holding that DOMA's classification of same-sex spouses is not substantially related to an important government interest.

The Court heard oral argument in the gay marriage cases on March 26th and March 27th 2013. Click here to listen to the oral arguments in these case.

In its last decisions of the term on June 26, 2013, the Court issued it historic decisions in Windsor and Perry.  In Perry, the Court held that because petitioners won their case at the trial court level and state officials refused to appeal the decision, the appellate Court and the Supreme Court lacked the power to decide the case. Therefore, the trial court decision striking down the California constitutional amendment banning gay marriage became the final decision on the matter, making the Proposition 8 ballot initiative a dead letter. In Windsor, five of the justices reached the merits of the case and in a 5-4 decision struck down Section 3 of the federal Defense of Marriage Act. Accordingly, same sex couples legally married in states that permit same sex marriage are now entitled to the same federal benefits as opposite sex married couples. Justice Kennedy wrote and the Court held:

The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. . . . This raises a most serious question under the Constitution’s Fifth Amendment. . . . for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence v. Texas, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. . . . The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. . . . By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

In the wake of Windsor, many open questions remain. For instance, it remains unclear whether Section 2 of the Defense of Marriage Act, which permits states to refuse to recognize valid same-sex marriage performed in other states, is constitutional. Furthermore, it is an open question whether a same-sex couple is validly married in one state and then moves to another that does not recognize same sex marriage is still entitled to federal marriage benefits. Finally, because Perry was decided on standing grounds it is still an open question as to whether the Constitution prohibits states from denying same-sex couples the right to marry. Many believe it to be increasingly inconsistent for the Court to square holdings declaring marriage a state rights issue with Loving v. Virginia, the 1967 Supreme Court case which invalidated state laws banning interracial marriage. Doubtless, these open issues and many others will make their way to the courthouse steps in the near future.