The U.S. Supreme Court will consider two cases this week that could have the biggest effect on the shape of the American family since Roe v. Wade, the 1973 decision that legalized abortion.

On Tuesday the nine justices will hear one hour of arguments in Hollingsworth v. Perry, the case on the constitutionality of California’s Proposition 8, a voter-approved state constitutional amendment that defines marriage as being between a man and a woman. On Wednesday the justices will hear two hours of arguments in United States v. Windsor, the challenge to Section 3 of the federal Defense of Marriage Act (DOMA). Together, the two cases could transform the definition of marriage at both the state and federal level, and determine whether homosexuality deserves the same heightened legal protection as race.

The justices could toss out both DOMA and Proposition 8 as unconstitutional discrimination against homosexuals, which would call every traditional marriage law at the state level into question. But the justices have many alternate paths they could take that seem more likely. They could toss out DOMA but allow states to determine their marriage laws (a good bet since Justice Anthony Kennedy, again the likely deciding vote, is a major proponent of states’ rights).

Justice Ruth Bader Ginsburg, part of the court’s liberal bloc, expressed regret last year about the Roe decision, saying it went “too far, too fast.” Some took that to mean she believed the court should have allowed the legislative process to legalize abortion nationwide instead of the court intervening. Conservative legal star and former U.S. Circuit Judge Michael McConnell argued something similar about the marriage cases in a recent Wall Street Journal op-ed: He said the court should avoid another Roe,strike down DOMA, and allow states to decide their marriage laws.

Both the California and U.S. governments have declined to defend their laws in question. A group of California voters will defend Proposition 8 instead of the state attorney general. The U.S. House of Representatives will defend DOMA since the U.S. Department of Justice decided to switch sides on the issue in the midst of litigation. The Justice Department will present arguments at the Supreme Court against both Proposition 8 and DOMA. Paul Clement will argue on behalf of the House, going up against his old foe in last year’s healthcare case, Solicitor General Donald Verrilli.

PROPOSITION 8: HOLLINGSWORTH V. PERRY
Courts have bounced Proposition 8 around since voters approved the state constitutional amendment in 2008, but the 9th U.S. Circuit Court of Appeals most recently ruled it unconstitutional. Even under Proposition 8, California provided essentially all of the benefits of marriage to same-sex couples, but called such relationships “domestic partnerships” instead of “marriage.” Same-sex couples under Proposition 8 could adopt children, file state taxes jointly, and share a health insurance policy as spouses would. About a year ago, the 9th Circuit ruled that Proposition 8 violated the rights of same-sex couples under the 14th Amendment. The court argued that even though gay couples had all the legal benefits of marriage, California was denying them the term “marriage,” which is “a symbol … of something profoundly important.”

The 9th Circuit further ruled that the reasons for passing Proposition 8—promoting responsible childbearing, caution in changing the definition of an old institution, and protecting religious freedom—didn’t have anything to do with the amendment itself.

“Even if proponents [of Proposition 8] are correct,” that the state should promote procreation and childrearing through heterosexual marriage, “Proposition 8 had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California,” the judges wrote.

The Supreme Court is known for undoing 9th Circuit decisions, regardless of the issue.

DOMA: UNITED STATES V. WINDSOR
Edith Windsor is the surviving partner of a marriage with a woman in New York (they were married in Canada and New York recognized such unions). When her partner died, Windsor did not receive the federal estate tax deduction for spouses because DOMA’s Section 3 defines marriage as “a legal union between one man and one woman as husband and wife” for the purpose of federal benefits. (Under the unchallenged part of DOMA, states can still recognize or ignore marriage laws from other states.) Windsor sued.

The 2nd U.S. Circuit Court of Appeals ruled in Windsor’s favor last fall, saying DOMA Section 3 did not withstand a heightened level of scrutiny, which meant the court didn’t consider DOMA a discriminatory law on the level of race, but just a few notches below it.

“We agree that the promotion of procreation can be an important government objective,” the judges wrote. “But we do not see how DOMA is substantially related to it.”

The defenders of DOMA will have to expend a lot of energy explaining this before the Supreme Court, what in legalese is called the “rational basis” for the law. The numerous briefs filed by traditional marriage advocates at the Supreme Court attempted to fill in any gaps on that front. Robert George, the Catholic Princeton Law professor, filed a brief on both cases that presents a natural law argument justifying the state’s interest in traditional marriage.

“Why does the state recognize marriage but not other close bonds?” George posited. “It has an interest in supporting the stabilizing norms of marriage because marriage is uniquely apt for family life. Only male-female sexual relationships produce new human beings. … But family stability does not happen by chance. It requires a strong marriage culture.”

In a dissent from the 2nd Circuit’s ruling in Windsor, Judge Chester Straub laid down why DOMA was enacted. Clement may take this thread of argument in his defense of the law.

“The Congress decided to codify what had always been implicit in federal law,” Straub wrote. “The history of federal legislation in respect of the meaning of marriage or spouse was never even suggested to mean anything other than the lawful union of one man and one woman for all federal purposes. The nation’s traditional understanding was memorialized in DOMA. Congress explicitly sought to recognize for federal purposes the significance of our historical understanding of a mainstream value, joining the biological component of the marriage relationship to the legal responsibility of rearing the offspring of that union.”

© Copyright 2013 World News Service – used with permission