Jon Scruggs

Contrary to what you may have heard, the fight for marriage did not end on June 26 when the Supreme Court handed down its decisions in the Proposition 8 case, Hollingsworth v. Perry, and the Defense of Marriage Act case, United States v. Windsor. Neither of these cases invalidated any state law (such as a state constitutional amendment or state statute) protecting marriage. And neither case guaranteed the future invalidation of any state law protecting marriage. That’s the way it can stay…or America can allow the decision to be manipulated into a nationwide redefinition of marriage if people stand idly by and do nothing.

By the letter, the two cases simply moved the focus from federal laws to state laws. Proponents of marriage must prepare themselves for the onslaught of litigation that is sure to come against state laws protecting marriage.

To grasp this point, understanding just what the Supreme Court actually decided is imperative. With respect to Perry, the court held that the supporters of Proposition 8 lacked “standing” to defend the initiative. Basically, the court said that the initiative’s supporters were the wrong party to defend it.

This conclusion was quite technical and procedural. Thus, this decision never addressed the validity of Proposition 8 or any other state law protecting marriage. Of course, the decision has important practical ramifications for marriage in California. But these ramifications are, at most, limited to California. The Supreme Court’s decision does not apply to any state law protecting marriage outside of California.

With respect to Windsor, things are more complicated. Windsor invalidated §3 of DOMA which defined marriage in all federal statutes as the union of one man and one woman. By invalidating §3, Windsor allows federal agencies to redefine marriage when conducting their federal business or to adopt a state’s definition of marriage if that state has redefined marriage.

But the Supreme Court did not invalidate any state law protecting marriage as an opposite-sex union. Thus, in the 38 states that have defined marriage that way, the definitions still hold—an important fact that proponents of same-sex marriage want to ignore.

For example, after the Windsor decision, the Alabama Constitution still defines marriage in terms of one man and one woman. But the United States government must now treat two men married in Massachusetts as “married” for federal tax purposes because Massachusetts has redefined marriage in its laws. Thus, under Windsor, states can continue to protect or redefine marriage on a state by state basis.


Jon Scruggs

Jon Scruggs is legal counsel with Alliance Defending Freedom.