Georgetown Law Professors Contribute To Supreme Court Marriage Decisions

June 26, 2013 — Georgetown Law professors have made important contributions to the Supreme Court’s June 26 decisions in United States v. Windsor, asking whether the federal Defense of Marriage Act is unconstitutional, and in Hollingsworth v. Perry — asking whether the state of California can legally define marriage in terms of one man/one woman.

The Court in Windsor struck down DOMA on due process and equal protection grounds. In Perry the Court declined to reach the merits, but its ruling reinstates the District Court’s holding that California’s Proposition 8 violated the U.S. Constitution.

“We are pleased that our faculty has played such significant roles in these historic cases, whether through amicus briefs or in discussions explaining the impact of the decisions,” said Georgetown Law Dean William M. Treanor. “Our professors continue to dramatically shape the world in which we live.”

Supreme Court Institute Director Irv Gornstein served as counsel of record on a major amicus brief in Perry, asserting that proponents of California’s Proposition 8 (banning same-sex marriage) had no standing as a party in that case. Citing Gornstein’s brief, the Supreme Court concluded that Proposition 8 supporters did indeed lack standing. “Because we find that petitioners do not have standing,” Chief Justice Roberts wrote for the Court, “we have no authority to decide the case on the merits, and neither did the Ninth Circuit.”

The Supreme Court decision in Perry leaves in place a lower court judgment that Proposition 8 is unconstitutional. 

In Windsor, Adjunct Professor Paul Clement argued in the Supreme Court on behalf of the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG). Since the U.S. solicitor general chose not to defend DOMA, BLAG intervened to fill that role. The Court concluded that BLAG did indeed retain a stake sufficient to support jurisdiction — thus allowing the Court to proceed to the merits in Windsor of whether DOMA was unconstitutional.

The federalism portion of Justice Anthony Kennedy’s opinion in Windsor deploys arguments in an amicus brief by the Federalism Scholars, co-authored by Professor Randy Barnett. That brief is cited on page 23 of the opinion.

Professor Nan Hunter also appeared on an amicus brief as counsel of record supporting Windsor. 

And  Professor Marty Lederman's posts on SCOTUSblog regarding the complex jurisdictional issues and the many different dispositions available to the Court were of invaluable use to litigants, Court insiders, and the media in trying to understand and think through the complexities of the two cases.

Georgetown Law’s Supreme Court Institute, meanwhile, mooted 100 percent of the cases heard by the Court in the October 2012 Term, while hosting panel discussions, press briefings and other related events on the marriage issues. 

The Supreme Court has already agreed to hear next term the case of Bond v. United States, asking whether a treaty can increase the legislative power of Congress — addressing the 1920 case of Missouri v. Holland, regarding the government’s power to make treaties. Based on his work in this area, Professor Nicholas Rosenkranz has authored an amicus brief for the Cato Institute in support of petitioner Carol Anne Bond; Paul Clement is counsel of record for Bond.

Here's what our professors are saying about the decisions. For more on their work in the media, see Georgetown Law in the News.

For Professor Randy Barnett on SCOTUSblog, click here.

For Professor Marty Lederman on SCOTUSblog, click here.

For Professor David Cole in The New York Review of Books, click here.

For Professor Nan Hunter in The Nation, click here.

For Professor Paul Butler in The New York Times, click here.