SPECIAL ISSUE: Same-Sex Marriage: Federal and State--DOMA and Proposition 8 Move Closer to the Supreme Court

Within a matter of days in late spring, U.S. Courts of Appeals on opposite sides of the country rendered decisions that have set the stage for the same-sex marriage issue to reach the Supreme Court. On May 31, the First Circuit struck down Section 3 of the Defense of Marriage Act (DOMA), which defines marriage as the “legal union of one man and one woman” for purposes of federal law. Commonwealth of Massachusetts v. United States Dep't of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012). In declaring DOMA's Section 3 unconstitutional, the Court of Appeals used an unconventional standard of review, what the court called a “closer than usual” application of the rational basis test, concluding that the statute “fails that test.” Id. at 8, 15. Five days later, the Ninth Circuit denied a petition for rehearing en banc in the case challenging the constitutionality of Proposition 8, the 2008 ballot initiative that sought to amend California's Constitution to define marriage as the union of a man and a woman. Perry v. Brown, 671 F.3d 1052 (9th Cir.), rehearing en banc denied, 681 F.3d 1065 (9th Cir. 2012). By denying the petition for rehearing, the Ninth Circuit let stand an earlier decision by a three-judge panel that had struck down Proposition 8 as violative of the Fourteenth Amendment's guarantee of equal protection by seeking to strip away from same-sex couples a right ' the right to marry ' that previously had been granted to them. See 671 F.3d at 1063. Both circuit court decisions left opponents of marriage equality with one avenue of recourse: filing a petition for certiorari in the U.S. Supreme Court.