The Supreme Court Ruling on Same-Sex Marriage

Vol. 2, No. 12

James L. Schwartz is the principal attorney at James L. Schwartz and Associates in Chicago, IL, and the Substantive Law Deputy Editor of GPSolo eReport.


  • You've seen all of the public reaction. What does the decision really mean?
  • What does the decision mean in states that don't have same-sex marriage provisions?


On June 28, 2013, the Supreme Court of the United States rendered two opinions regarding same-sex marriage. Actually, both cases dealt with the Defense of Marriage Act (DOMA), which had been passed by Congress and also several of the states. Since the passage of those statutes, which mostly took place in the mid-1990s, some states have repealed their statute while the voters in other states have overturned those statutes.

The Supreme Court was principally presented with two issues: (1) whether DOMA violates several sections of the US Constitution and should be overturned; and (2) whether the ban on same-sex marriage in California, based on Proposition 8, was unconstitutional.

In the first case, U.S. v. Windsor, the issue before the Court was whether DOMA should be ruled unconstitutional in its entirety. The Court decided against that ruling but did not say that it was constitutional either.

In the second case, Hollingsworth v. Perry, the Court was asked whether DOMA, as it applied to the plaintiffs here, was unconstitutional. The Court said that it was unconstitutional. It also found that if DOMA had been enacted in a state that also had enacted same-sex marriage (whether through the courts, legislature, or public vote), that same-sex marriage was upheld in those states because DOMA was unconstitutional there.

In future columns, more in-depth analysis of these ground-breaking decisions will be presented along with their effects on other issues. As to same-sex marriage, though, the rule now is that if a state has enacted same-sex marriage in some form, then it is legal, and the same-sex persons are entitled to the same federal benefits as any other married person. Fewer than 50 percent of the states have enacted same-sex marriage provisions. In the states that have not, no protections or federal benefits shall inure to those persons, even if they have been “married” by a member of the clergy because that symbolic act has no “legal” effect.


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