On Tuesday, the Supreme Court heard arguments in Hollingsworth v. Perry, involving the constitutionality of Proposition 8 (California’s controversial ban on same-sex marriage).  Due to issues regarding standing (the legal right of a party to bring  a suit), the real question facing the Court is likely not whether it would strike down Proposition 8, or what the broader effect of such a decision might be, but whether it is going to reach the merits of the case at all.  Given the questions and comments at argument, the Court may not weigh in on the issue of same-sex marriage.  We will have to wait and see.

Yesterday, in United States v. Windsor, the constitutionality of the federal Defense of Marriage Act (defining marriage as between a man and a woman) was before our highest court. During argument, Justice Kennedy indicated that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage.  However, if the Court was to strike down the law based on states’ right, it would not give same-sex couples the legal right to marry under the Constitution.  From questions and comments during argument, it appears unlikely that the Court would strike down the DOMA because it denies same-sex couples legal equality under the Fifth Amendment (by denying them the right to marry).  It looks like the constitutionality of same-sex marriage will not be reached in this case either. The Court, although it has been dealing with gay rights cases for years, has never spelled out a specific constitutional standard for judging laws that allegedly discriminate based on sexual orientation.   

Regardless of whether the Supreme Court reaches the constitutionality of same-sex marriage in Hollingsworth or Windsor, this is a matter requires clarity and guidance from our legislature.  Until that happens, we must look to our courts to fill in the gaps.  These two cases are the first of many more to come.  Check our blog for updates.

To read more on this subject:

Argument recap: DOMA is in trouble (FINAL UPDATE)

What will the Court do with Proposition 8? Today’s oral argument in Plain English

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.