The Supreme Court will hear oral arguments in the challenge to California’s Proposition 8 on March 26 and the Defense of Marriage Act (DOMA) on March 27.
With the arguments fast approaching, the parties’ briefs and amicus curiae briefs have started to trickle in—tackling the various issues raised in these cases: namely, who can defend these laws and whether the laws violate due process or equal protection.
The government officials charged with defending Proposition 8 and DOMA failed to defend the laws in court, and as a threshold matter, the Supreme Court must decide if advocates of Proposition 8 and the U.S. House of Representatives Bipartisan Legal Advisory Group have standing (a legal term for whether they are the proper parties to defend the laws and have suffered a concrete injury). If the justices hold that the defenders of Proposition 8 and DOMA do not have standing, the Court will not reach the merits of these cases.
Assuming the justices find that the defenders of Proposition 8 and DOMA have standing, they will next consider the underlying constitutional questions: Do the laws violate due process by prohibiting the exercise of a fundamental right, and do laws regarding marriage that treat same-sex couples differently from opposite-sex couples violate equal protection?