As the arguments set before the Supreme Court approach in both the DOMA and Prop 8 cases, several parties have filed amicus curiae briefs urging the Court to strike down both laws. Notably, a group of 75 Republicans filed an amicus brief arguing that Prop 8 violated both the equal protection and due process rights of same-sex couples. Even the State of California, which has refused to defend the law, submitted an amicus brief asking the Court to declare its own law unconstitutional. Additionally, a group of 278 employers filed a brief in the DOMA case urging the Court to strike down the law as unconstitutional. The employers included Apple, Facebook, Intel, AIG, Oracle, McGraw Hill, Verizon, Levi Strauss, Cisco, Morgan Stanley, Nike, Panasonic, Xerox and hundreds more.
The Department of Justice, on behalf of President Obama’s administration, has also weighed in by filing an amicus brief in each case. In the Prop. 8 case, President Obama filed an amicus brief arguing that Prop. 8 violated the equal protection rights of same-sex couples. Stopping short of urging the Court to recognize same-sex marriage as a constitutional right for the entire nation, the administration endorsed the “eight-state solution” — that is, if a state already recognizes all the privileges and benefits for same-sex couples that married couples have (in reference to the eight states that currently do so through “civil unions,” including California) those states must go the final step and allow those couples to get married. The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.
In the DOMA case, the DOJ argued that Section 3 of DOMA must be struck down as a violation of equal protection for same-sex couples. “Section 3 of DOMA violates the fundamental constitutional guarantee of equal protection. The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples. Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional.” To read the DOJ’s brief in its entirety, go here.
Significantly, there are unique jurisdictional questions presented that may prevent a ruling on the merits from the Supreme Court in either case. However, the public will not know whether the Court is going to rule on only the jurisdictional questions or also the merits until the rulings are issued. Oral arguments in the Prop 8 case are set for March 26, 2013 and arguments in the DOMA case are set for the following day, March 27, 2013. The rulings are expected to be issued in late June 2013.