On June 26, 2013, the Supreme Court announced its decision in Hollingsworth v. Perry and United States v. Windsor. Both cases concerned the constitutionality of same-sex marriages. Perry considered whether the Equal Protection Clause of the Fourteenth Amendment prohibits California from defining marriage as the union of a man and woman, and whether the petitioners have standing to sue in the case. The questions in Windsor were whether Section 3 of the Defense of Marriage Act (DOMA) violates equal protection, whether the Executive Branch’s agreement with the lower court deprives the Supreme Court of jurisdiction, and whether one of the parties had standing to sue in the case.
In Perry, in an opinion delivered by Chief Justice Roberts, the Supreme Court held by a vote of 5-4 that the petitioners did not have standing to appeal the district court’s order striking down Proposition 8, and that the Supreme Court therefore could not reach the merits of the dispute. The Court remanded the case to US Court of Appeals for the Ninth Circuit with instructions to dismiss the appeal for lack of jurisdiction. Justices Scalia, Ginsburg, Breyer and Kagan joined the majority opinion. Justice Kennedy filed a dissenting opinion, which was joined by Justices Thomas, Alito and Sotomayor.
In Windsor, in an opinion delivered by Justice Kennedy, the Court held by a vote of 5-4 that it had jurisdiction to consider the case, and that Section 3 of DOMA violates equal protection under the Fifth Amendment and is therefore unconstitutional. Justices Ginsburg, Breyer, Sotomayor and Kagan joined the majority opinion. Chief Justice Roberts filed a dissenting opinion. Justice Scalia filed a dissenting opinion in which Justice Thomas joined and which the Chief joined in Part I. Justice Alito filed a dissenting opinion which Justice Thomas joined in parts II and III.
To discuss the cases, we have Carrie Severino, who is chief counsel and policy director of the Judicial Crisis Network and Jonathan Adler, the Johan Verheij Memorial Professor of Law and Director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law.