A divided U.S. Supreme Court today declared unconstitutional the Defense of Marriage of Act of 1996, which blocked federal benefits to same-sex couples. Justice Anthony Kennedy delivered the opinion for the court.

The Defense of Marriage Act, Kennedy wrote, "violates basic due process and equal protection principles applicable to the Federal Government." Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined Kennedy.

"Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways," Kennedy wrote. "By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive."

In dissent, Justice Antonin Scalia wrote: "Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat."

The DOMA and Proposition 8 cases arrived at the Supreme Court after traveling on parallel tracks through lower federal courts on opposite sides of the country. And both brought with them questions involving standing and the court's jurisdiction that threatened to prevent the justices from deciding the merits.

In U.S. v. Windsor, the justices were asked whether section 3 of the federal Defense of Marriage Act (DOMA) violates the right of legally married, same-sex couples to equal protection under the Fifth Amendment. Section 3 defines marriage as the union of a man and woman for all federal purposes. It applied to more than 1,000 federal laws.

Edith Windsor filed the federal challenge to Section 3 after the death of her spouse in 2008. Their marriage was legally recognized by the state of New York. Windsor's spouse had left her estate to Windsor. The Internal Revenue Service denied Windsor the use of a spousal estate tax exemption on the grounds that DOMA did not recognize same-sex marriages for the purpose of federal benefits. Windsor received a federal estate tax bill of nearly $400,000.

At the time of Windsor's lawsuit, the United States was defending DOMA in a number of cases around the country. But in February 2011, the Obama Administration announced a shift in position. Attorney General Eric Holder said the administration had concluded that classifications based on sexual orientation deserve heightened scrutiny, and under that scrutiny, DOMA's section 3 was unconstitutional. The administration, he said, would continue to enforce law but would not defend it.

With the government bowing out of DOMA's defense, House Republican leaders intervened to defend the law. The House of Representatives' Bipartisan Legal Advisory Group (BLAG) hired former Solicitor General Paul Clement of Bancroft to lead that defense.

In the Windsor case, the federal district court ruled for Windsor on summary judgment and the U.S. Court of Appeals for the Second Circuit affirmed.

The Proposition 8 case, Hollingsworth v. Perry, asked the justices whether the 14th Amendment's equal protection clause prohibited the state of California from defining marriage as the union of a man and a woman. The case had its roots in a lawsuit filed by Theodore Olson of Gibson, Dunn & Crutcher, and co-counsel David Boies of Boies, Schiller & Flexner, challenging California's ban on behalf of two gay couples who wanted to marry.

The ban was enacted by voters shortly after the California Supreme Court ruled in 2008 that the state constitution guaranteed gays and lesbians "both the incidents and status and dignity of marriage."

California's governor and attorney general refused to defend Prop 8 in the federal lawsuit. The ballot initiative committee behind Prop 8 intervened to defend it. A federal district judge ruled that the ban violated the equal protection clause of the 14th Amendment and issued a statewide injunction against its enforcement. A panel of the U.S. Court of Appeals for the Ninth Circuit affirmed, but on narrower grounds.

The three-judge panel, led by Judge Stephen Reinhardt, ruled 2-1 that: “By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause.”

The divided panel held that the right to marriage, once given, had been withdrawn on the basis of animus and that violated the equal protection clause.
A question of the Prop 8 proponents' standing to defend the ban loomed throughout the litigation until, on a question certified by the Ninth Circuit to the California Supreme Court, that state high court ruled that the proponents did have standing under the state constitution.
When the Supreme Court granted review to the Prop 8 proponents' appeal, the justices ordered both sides to brief and argue the standing question.

The justices also ordered briefing and argument on the standing and jurisdictional issues in the DOMA case. They questioned whether BLAG had standing to defend Section 3 and whether there was jurisdiction to decide the case when the United States agreed with the lower court ruling. They subsequently appointed Harvard Law's Vicki Jackson to make the arguments against standing and jurisdiction.

The court held two days of arguments last February in the historic challenges. Facing off on the merits of the Windsor case were Bancroft's Clement for BLAG versus Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison, counsel to Windsor on behalf of the American Civil Liberties Union, and Solicitor General Donald Verrilli Jr. Deputy Solicitor General Sri Srinivasan, Clement and Jackson argued the standing and jurisdictional issues.

In the Prop 8 arguments, Charles Cooper of Cooper & Kirk argued on behalf of the ballot initiative committee. Gibson Dunn's Olson represented the challengers, and Solicitor General Donald Verrilli Jr. pressed the government's position that equal protection required the eight states, which have approved civil unions—giving gay couples all of the benefits of marriage—to recognize marriage.

The two cases triggered an avalanche of amicus briefs from a wide range of organizations, historians, law professors, civil rights groups and others: 30 pro-DOMA and 47 anti-DOMA briefs; 42 pro-Prop 8 and 54 anti-Prop 8 briefs.

A number of states, plus the District of Columbia, recognize same-sex marriages. Eight states recognize full or limited civil unions or domestic partnerships. And 36 states have anti-marriage laws or constitutional amendments prohibiting same-sex marriages.

Marcia Coyle can be contacted at mcoyle@alm.com.