Douglas Whaley. Law professor, gay rights advocate, atheist, heart transplant recipient, actor, director, novelist, playwright, bridge player, husband, father, cat owner, storyteller. Much humor and, since the writer is a teacher, advice on many topics.
Gay Marriage, DOMA, Proposition 8 and the Mysterious Supreme Court
On this blog I’ve sometimes speculated about what the United States Supreme Court will do with the growing issue of gay marriage (see “Jumping the Broom: How "Married" are Married Gay Couples?” in Related Posts below, for example), but that ticking bomb is about to explode.Before the end of June, 2013, the Court will decide two major cases involving the issue.What is amazing concerns which cases the justices decided to hear.
The Court held a hearing to determine whether to grant “cert” (shorthand for “certiorari,” a Latin word meaning “send up the record,” i.e., “grant the appeal”) on five cases that were presented to it by the lower federal courts.Four of these cases challenged the constitutionality of the Defense of Marriage Act, a federal statute forbidding the federal government to recognize any marriage not between a man and a woman, and the fifth was the ruling of the Ninth Circuit Court of Appeals upholding a federal trial court’s ruling that Proposition 8, which amended that state’s constitution to stop gay marriages after the California Supreme Court had allowed them, was unconstitutional so that gays could continue to marry in California.
The Court decided to hear one of the four DOMA cases and, to my utter amazement, also took up the Proposition 8 case.Let me discuss each in turn.
The Defense of Marriage Act
The DOMA challenges are not surprising and the Court’s result is predictable.Part of DOMA was clearly unconstitutional when Congress enacted it and forced President Clinton to sign it in 1996.The statute has two main components.The first states that the federal government is forbidden from recognizing the validity of any marriage not between one man and one woman.Thus even if a gay couple were legally married in a state that allows gay marriages, say Massachusetts, they could get no federal benefits from that marriage: not health insurance should one partner work for the federal government, nor Social Security for the partner, no immigration protection for the partner, nor tax benefits of any kind.The second part of DOMA provided that states not wishing to recognize a gay marriage validly entered into in another state need not do so.Thus Ohio, where I live and where our state constitution (like many others) forbids gays the right of marriage, need not extend marriage rights to a gay couple married in Massachusetts.
The purely federal part of DOMA was always unconstitutional, and the only reason that it's taken this long to make that clear was that court challenges had to work their way to the Supreme Court, which takes awhile.But our Constitution’s 14th Amendment requires “equal protection of the law,” and we would have chaos if people a state deemed married were “unmarried” for federal purposes.What’s equal about that?States have always had the primary responsibility for marriage laws, the U.S. Constitution says nothing at all about marriage, and the 10th amendment to that Constitution simply states in its entirety “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”Every federal court seriously considering the constitutional challenge to the part of DOMA that says the federal government can deny federal recognition of gay marriages has ruled the statute unconstitutional, including all four of the DOMA cases the Court considered in its recent certiorari hearing.
The case that the Court took for decision has arguably the best facts for the gay plaintiff, which itself indicates how the Court will come out.In this case, Windsor v. United States, Edie Windsor and her longtime partner Thea Spyer were residents of New York who first met in 1963.They married in Canada and not long thereafter Spyer died.At the time of her death New York did not permit gay marriage (as it now does).If Windsor and Spyer were a heterosexual couple then the surviving spouse would not have to pay the federal inheritance tax, but since they were homosexual and DOMA therefore withheld any protection of their marriage, Windsor was stuck with a $363,053 federal inheritance tax bill.She paid it and then filed this suit for reimbursement, arguing that DOMA is unconstitutional under the Equal Protection Clause of the 14th Amendment.The federal trial court agreed, and on appeal to the United States Court of Appeals for the Second Circuit (which hears cases from the northeast) that ruling was affirmed [699 F.3d 169 (2d Cir. 2012)].The Second Circuit ruled there were no factual or policy justifications for DOMA, and struck down the portion of it that denied federal benefits to legally married gay couples. There was a dissenting opinion arguing, in essence, that a history of long-entrenched homophobia is itself a justification for DOMA---well, Judge Straub doesn’t quite put it that bluntly.What he actually said at the beginning of his dissent was:
The majority holds DOMA unconstitutional, a federal law which formalizes the understanding of marriage in the federal context extant in the Congress, the Presidency, and the Judiciary at the time of DOMA's enactment and, I dare say, throughout our nation's history. If this understanding is to be changed, I believe it is for the American people to do so.
Windsor v. United States is beautifully argued in the majority opinion, and I, along with almost all legal commentators, predict that the Court will affirm the decision of the Second Circuit, so Edie Windsor will get her tax payment back, and from now on all the thousands of federal benefits that flow to married couples will be available to all married couples.It will be a big day in the history of gay rights.
In May of 2008 the California Supreme Court handed down a decision declaring that the California Constitution required that gays be allowed a right to marry in the state.Gays promptly trooped to the altar in large numbers, many of them from out of state.But the public outcry, led by the Catholic and Mormon Churches, put a constitutional amendment on the ballot that November called “Proposition 8,” which would change the California Constitution to forbid recognition of gay marriages.Proposition 8 passed, and although the California Supreme Court then held that gay marriages entered into prior to Proposition 8 remained valid, further gay marriages were forbidden in the state.
A lawsuit called Perry v. Schwarzenegger was promptly filed in federal court using the 14th Amendment to the United States Constitution’s Equal Protection clause as grounds for holding Proposition 8 unconstitutional.The State of California, the defendant, agreed with the gay plaintiffs and declined to defend the lawsuit, but the proponents of Proposition 8 hired lawyers for the defense and the case proceeded to trial.All of the evidence at trial showed that there were no factual or policy justifications for condemning gay marriage, and that the sole animus of Proposition 8 was homophobia writ large.It was the only justification the defense could offer: we hate homosexuals and don’t want them to have any rights.Federal Judge Vaughn Walker eventually decided in favor of the plaintiffs and ruled Proposition 8 unconstitutional.
The case, now renamed Perry v. Brown, was appealed to the United States Court of Appeals for the Ninth Circuit, which affirmed Judge Walker’s decision but narrowed the constitutional grounds for doing so.Instead of holding that the 14th Amendment should be read to give equal protection to marriage rights for gays across the country, the Ninth Circuit said that was too broad.Instead the court compared the situation to the U.S. Supreme Court’s decision in Romer v. Evans (1996), in which the Court struck down an amendment to the Colorado Constitution that would have invalidated existing Colorado laws protecting gays from discrimination.The Court in Romer stated that if a state was going to take away existing civil rights it had to have a rational reason for doing so, and, again, mere homophobia is not a rational reason.Analogizing to Romer the Ninth Circuit said that Proposition 8 took away the existing right of gays to marry without a valid justification, and thus violated the Equal Protection Clause.The Ninth Circuit’s opinion was 2-1, and an appeal was heard to the entire Ninth Circuit, asking all the Circuit judges to rehear the case, which they refused to do. The case, now called Hollingsworth v. Perry, was appealed to the Supreme Court, which agreed to hear it, with a decision expected by the end of June (when the Court’s term ends).
Here’s why it amazes me that the Court agreed to hear Hollingsworth v. Perry: unlike the DOMA cases where clarity in the law is important, if the Court simply refused to hear the appeal nothing much would change in the country except that gay marriages in California would be legal (and nothing could ever be done to make them illegal).Given that gay marriages are spreading across the country in any event, that hardly seems worth the Court’s time.Did the Court take the case to reverse the Ninth Circuit (a liberal circuit, often reversed by a generally conservative Court)?That can’t be right because of the current makeup of the Court: four liberals, four conservative, and (as I’ve said before on this blog) the most powerful judge in the world, Justice Anthony Kennedy, who gets the deciding vote on all these delicate questions.But Kennedy has been splendid when it comes to gay matters.He wrote the opinion in Lawrence v. Texas (2003), which struck down all the sodomy statutes in the United States as unconstitutional, and, more importantly, he is also the author of Romer v. Evans.Thus he is unlikely to suddenly rule that the narrow ruling of the Ninth Circuit, which tracks Romer closely, is wrong, and that homophobia is a sufficient ground to deny gays a marriage right they were enjoying when Proposition 8 passed.This means there are at least five votes to affirm the Ninth Circuit (and perhaps more---some of those conservative Justices undoubtedly have gay family members, friends, clerks, etc., and the handwriting is on the wall that gay marriage is going to be universal in the very near future).
Could the Court have agreed to hear Perry because it wants to take a giant step: say that Judge Walker’s trial court decision is right: the 14th Amendment gives everybody in the country the right to get married?If so, WOW!That would mean that gays could get married in Alabama the day after the decision was handed down.I’d like that, of course, but it’s too much to expect.The Court will say that some day, but not in 2013.
What’s Left of DOMA and Bans on Gay Marriage?
Even if, as I predicted above, the Court rules DOMA unconstitutional as to its federal non-recognition of gay marriage, that doesn’t strike down the portion of DOMA that gives states the right to refuse recognition of gay marriages legally entered into outside that state.What about that part of DOMA?It’s got to go too, of course, because, as I said above, we’ll have chaos if people are married only in some parts of the country, but not others.We are a very mobile society in the United States, and already we have messy issues like can an Ohio court (where gay marriage is not valid) grant a divorce to a gay couple married in a state where their marriage is valid (the answer, according to Ohio courts is, apparently, yes).The United States Constitution requires that “full faith and credit” must be given by one state to the public acts of another, but whether that will apply to gay marriage is complicated by the existence of a very old United States Supreme Court decision holding that a Mormon polygamist marriage need not be recognized by a state not allowing marriage to more than one person.Eventually (and soon) the United States Supreme Court will have to answer that question.But these legal tangles have a predictable ending in the long run: gays will be able to get married in all U.S. jurisdictions eventually But important steps in that direction will likely occur before the end of June---just as gay pride parades gather all over the country---and those in favor of gay marriage have every reason to be hopeful.
"The Homosexual Agenda To Conquer the World," February 8, 2011
“Jumping the Broom: How "Married" are Married Gay Couples?” July 17, 2011
“Straight People: Thanks From the LGBT Community,” November 20, 2012
"Gay Marriage, the Supreme Court, and the Future," June 26, 2013
“Gays Will Be Able To Marry in All States By July of 2016 (and Maybe 2015): A Prediction,” February 14, 2014
"Gay Marriage, The 6th Circuit, Jeffrey Sutton, and the Supreme Court," November 13, 2014
"Alan Turing: Torturing a Gay Genius to Death," November 26, 2014