By Robert L. Mues   |   April 6th, 2013

What Is The Difference Between Prop 8 And DOMA? – Will Gay Marriage Issues Change Family Law?

Questions And Answers To The Issue Of Gay Marriage And The Supreme Court’s Likely Decision

gay marriageThe United States Supreme Court recently granted certiorari to two very controversial gay marriage issues, Prop 8, and DOMA.  Below I will discuss the two different issues, how they came to be here, and what the likely outcome may be.

Proposition 8

What is Prop 8?

Proposition 8 was a 2008 ballot provision in California.  This ballot provision provided that section 7.5 of the California constitution be amended to validate only a “marriage between a man and a woman.”  This ballot provision passed and overruled a California Supreme Court decision just months earlier granting equal marriage rights. Since then, gay marriage has been a hot button issue and has been challenged numerous times.

Why did the U.S. Supreme Court agree to hear this?

In the Supreme Court, it takes 4 votes to hear a case, and 5 votes to decide a case.  There is speculation behind the lines on why and how the Supreme Court accepted this case.  The questioning of the High Court only yields greater controversy.  One Justice questioned how this case was being heard, stating on the transcript he believes this case should be dismissed for lack of standing, while other Justices seemed more willing to hear this case.  The opponents to the law even seem to agree that there isn’t much standing, stating in their brief that “The proponents have shown no injury that would occur if Gays or Lesbians were allowed to marry in California.” This area of the Prop 8 issue is still blurry, and will likely lead to a vague ruling for both sides.

What are the Supporters saying?

Supporters of Prop 8 argue that the Court should recognize what the voters want in the state, as Prop 8 was a ballot provision that passed.  Supporters also argue that the courts should not rule in on this issue, and let the issue of gay marriage evolve on its own through legislation and voting provisions.  Believing that enforcing a decree in this issue would only complicate things further down the line.

What is the Opposition saying?

The opposition to Prop 8 are using equal protection arguments, often comparing this case to the civil rights era, when interracial marriages were going through significant litigation and controversy.  Outside the Supreme Court you could read signs where opponents to the law wrote “a right delayed is a right denied” a quote used by Martin Luther King, Jr. during the civil rights movement.  You’ll also see signs that mock the writing above the door of the Supreme Court, which states “Equal Justice Under Law.”

What is the likely outcome?

The likely outcome for this case is still yet to be determined.  Justices have hinted that the standing issue is of great concern, and have ordered both sides to submit briefs of jurisdiction.  The Court will almost certainly not satisfy either side with their ruling, if they rule, and may allow more time for this issue of gay marriage to progress in society before making a definitive ruling.  By doing so, they can avoid a calamity of a wrong ruling that has plagued some Supreme Court Justices in the past.

Defense of Marriage Act (DOMA)

What is DOMA?

DOMA is a federal law that restricts marriage benefits and interstate marriage recognition to only opposite sex couples.  The bill was passed by both houses and signed into law in 1996 by President Bill Clinton.

Why did the Supreme Court agree to hear this?

The Supreme Court is following tradition in this case.  DOMA has had sections repealed by lower federal courts throughout the years.   President Obama in 2011 instructed Attorney General Eric Holder to announce the following…

“After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.”

These two weighing factors have led the Supreme Court to its current situation.  They traditionally hear cases that involve Federal Laws being overturned in lower courts, and the announcement by the Executive branch that they will no longer defend the statute only weighs more significantly in the decision to hear this issue.

The current issue, in which the lower federal courts repealed specific restrictions in DOMA, involves an elderly woman (Edie) of age 83 who married a woman.  Edie’s spouse passed away from a terminal illness. Edie was left everything in her spouse’s will, and due to DOMA’s restrictive laws on same sex marriage benefits, Edie was required to pay a large estate tax.  If Edie’s spouse had been a man, her estate tax would have been zero.  This issue, as interpreted by the Second Circuit Court of Appeals, restricted Edie’s constitutional rights, and they agreed that this specific provision of DOMA was unconstitutional, and struck it down.

Why is this important?

Marital status is relevant in more than 1,100 federal laws that include estate taxes, Social Security survivor benefits and health benefits for federal employees (Huffington Post).  The estate taxes issue was shown with Edie and her spouse, but more of these issues will come to light as this case makes national headlines.

What is the likely outcome?

The Supreme Court seems more apt to upholding the lower court’s decision and overturning parts of DOMA, essentially opening the door for more challenges and possibly vacating the law.


These two issues are only the start of a flood of litigation regarding equal protection and the constitutionality of state and federal restrictions of gay marriage and gay and lesbian couples.  In the years to come gay marriage issues will be hammered out either in courts, ballot provisions, or legislative measures.  The decision is yet to come, and is not far off. We will keep you posted as to these developments on the Ohio Family Law Blog.

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Robert L. MuesAbout The Author: Robert L. Mues
Robert Mues is the managing partner of Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. Mr. Mues is also a founding member of the "International Academy of Attorneys for Divorce over 50" blog.

Gay Marriage: The U.S. Supreme Court Tackles Same-Sex Marriage Issues
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