Gay Marriage, the Supreme Court, and the Future
In a prior blog I predicted that the Supreme Court would strike down the federal portion of the Defense of Marriage Act (DOMA), but would duck the big questions in the California case which had the potential to create a right for gays to be married in all states. That proved to be correct, and while we all might have hoped for that bigger result, today’s two decisions are major steps forward in the advancement of gay marriage. Let’s deal with the DOMA case first.
A. The Defense of
Marriage Case: United States v. Windsor
Edith Windsor and Thea Spyer |
The federal Defense of Marriage Act was signed into law by
President Clinton in 1996. The part of
the statute under attack in this case is the portion stating that the federal
government will not recognize gay marriages even if states do. The plaintiff Edith Windsor had married Thea
Spyer in Canada (2007), though both were citizens of New York when Spyer died
two years later. At that time the State
of New York would have recognized the validity of the Canadian marriage even
though the State did not at that time recognize gay marriages solemnized in New
York (as it since has by statute).
Federal inheritance tax laws require non-spouses to pay huge tax burdens
on inheriting property, though spouses do not have to pay a cent, and Ms.
Windsor was hit with a $363,000 federal tax bill. She paid it, but then sued in federal court
in New York, contending that DOMA was unconstitutional under the Fifth
Amendment to the United States Constitution, which requires the federal
government to use due process (expanded by the courts to include some elements
of equal protection, much like the 14th Amendment does for the
states). The lower federal courts ruled
in her favor, and the Supreme Court today handed down a decision affirming the
lower courts (5 to 4, with Justice Kennedy and the four liberals in the
majority, and the conservatives all dissenting).
After making clear that the states have always had primary
jurisdiction over marital issues, and that the federal government can step in
and override state rules as to marriage only in limited circumstances, Justice
Kennedy said this: “Against this background DOMA rejects the
long established precept that the incidents, benefits, and obligations of
marriage are uniform for all married couples within each State, though they may
vary, subject to constitutional guarantees, from one State to the next.”
He added:
DOMA seeks to injure the very class New York seeks to
protect. By doing so it violates basic due process and equal protection
principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling
v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of
equality “must at the very least mean that a bare congressional desire to harm
a politically unpopular group cannot” justify disparate treatment of that
group. Department of Agriculture v. Moreno, 413 U. S. 528,
534–535 (1973). . . . DOMA’s principal effect is to identify a subset of state sanctioned
marriages and make them unequal. The principal purpose is to impose
inequality, not for other reasons like governmental efficiency.
Responsibilities, as well as rights, enhance the dignity and integrity of the
person. And DOMA contrives to deprive some couples married under the laws of
their State, but not other couples, ofboth rights and responsibilities. By
creating two contradictory marriage regimes within the same State, DOMA forces
same-sex couples to live as married for the purpose of state law but unmarried
for the purpose of federal law, thus diminishing the stability and
predictability of basic personal relations the State has found it proper to
acknowledge and protect. By this dynamic DOMA undermines both the public and
private significance of state sanctioned same-sex marriages; for it tells
those couples, and all the world, that their otherwise valid marriages are
unworthy of federal recognition. This places same-sex couples in an unstable
position of being in a second-tier marriage. The differentiation demeans the
couple, whose moral and sexual choices the Constitution protects, see Lawrence,
539 U. S. 558, and whose relationship the State has sought to dignify. And it
humiliates tens of thousands of children now being raised by same-sex couples.
The law in question makes it even more difficult for the children to understand
the integrity and closeness of their own family and its concord with other
families in their community and in their daily lives.
The
power the Constitution grants it also restrains. And though Congress has great
authority to design laws to fit its own conception of sound national policy, it
cannot deny the liberty protected by the Due Process Clause of the Fifth
Amendment.
The majority opinion ends with a statement
that this ruling applies only to states that have legalized gay marriages and
says nothing about the constitutional status of state laws that restrict
marriage solely to heterosexual couples.
Justice Antonin Scalia in his scathing dissent notes that when
the Court struck down sodomy laws in Lawrence
v. Texas (2003), it said then that the decision was not a precedent for
later attacks on statutes regulating other homosexual behavior. Today it cites Lawrence as just such a precedent.
Now, he wryly notes, the majority opinion similarly says it limits today’s
holding to states in which marriage is permitted by law. But he adds that won’t last:
That Court
which finds it so horrific that Congress irrationally and hatefully robbed
same-sex couples of the “personhood and dignity” which state legislatures
conferred upon them, will of a certitude be similarly appalled by state
legislatures’ irrational and hateful failure to acknowledge that “personhood
and dignity” in the first place. As far as this Court is concerned, no
one should be fooled; it is just a matter of listening and waiting for the
other shoe. . . . By formally declaring
anyone opposed to same-sex marriage an enemy of human decency, the majority
arms well every challenger to a state law restricting marriage to its
traditional definition. Henceforth those challengers will lead with this
Court’s declaration that there is “no legitimate purpose” served by such a law,
and will claim that the traditional definition has “the purpose and effect to
disparage and to injure” the “personhood and dignity” of same-sex couples. The
majority’s limiting assurance will be meaningless in the face of language like
that, as the majority well knows. That is why the language is there.
B. The Proposition 8
case: Hollingsworth v. Perry
In this opinion the Court ducked the substantive questions
presented about the constitutionality of state laws restricting gay marriage,
and instead decided the case on the procedural issue of “standing.” It is a basic of our laws that only the real
parties to a case have “standing” (i.e., the legal ability) to litigate and
appeal. At the federal trial court level
the plaintiffs were gay couples wishing to marry and thus had standing to attack
the state constitutional provision (enshrined there by passage of an evil
ballot initiative entitled “Proposition 8).
Plaintiffs sued the State of California, but state officials agreed with
the plaintiffs that this part of the state constitution was invalid under
federal law, and so the state declined to defend the lawsuit. Up jumped potential defenders in the form of
the original proponents of Proposition 8, and though their defense was so bad
that the trial court judge begged them to do a better job, in the end he ruled
against them and the State of California, holding that the Proposition 8 part of
the California Constitution was unconstitutional under the 14th
Amendment of the United States Constitution (which guarantees equal protection
of the law to all). The proponents appealed
to the Ninth Circuit Court of Appeals, which first ruled that they did have
standing for the appeal and then went on to uphold the trial court opinion on the
substantive grounds that the state could take away existing gay marital rights
only if it had a rational basis for doing so, which it did not.
The United States Supreme Court disagreed with the standing
ruling. It held that private citizens
had no standing to appeal the trial court decision, so neither the Ninth
Circuit nor the Supreme Court had jurisdiction.
Thus the trial court decision prevails, meaning that the portion of the
California constitution forbidding gay marriage is invalid. Interestingly the Supreme Court’s decision is
also 5 to 4, but the liberals and the conservatives are mixed. Chief Justice Roberts wrote the majority
opinion, which Justice Scalia joined along with three of the liberals, but
liberal Justice Sotamayor is one of the dissenters along with three of the
conservatives.
The upshot is that gay marriage is once again available in
the State of California, but—sigh— the Supreme Court did not accept the
opportunity to expand its reach to other states.
C. The Future
Thirteen states and the District of Columbia now recognize gay marriages as legally
valid, and that number is bound to enlarge as time goes on, with each year
being better than the one before it. The
Court is doubtless hoping that the states will work this out so it won’t have
to take on this issue again, but that’s a utopian vision that can’t possibly
work. First of all, some states,
particularly those in the Deep South, are never going to recognize gay marriage
(at least in this century) unless forced to do so. Today’s decision only struck down the part of
DOMA that said the federal government did not have to recognize gay marriages
validly entered into in other states, but 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 ugly part of DOMA? It’s got to go too, of course, because we’ll
have chaos if people are married only in some parts of the country, but not in others. We’re a very mobile society in the United
States, and already we have messy issues such as 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 the United States Supreme Court will have to
answer that question, and it’s hard to imagine that the Court will say that one
state can ignore marriages validly entered into in another state even if the
happy couple are (gasp!) homosexuals. If
the Court rules that “full faith and credit” requires states to recognize gay
marriages valid elsewhere, then gays in states like Mississippi can simply fly
to, say, New York, get married, and then return to Jackson and be as married as
the Governor and his wife.
Mississippi Governor Phillip Bryant and his wife Deborah |
Eventually
the Court is likely to hold that the 14th Amendment’s equal
protection clause requires all states to recognize gay marriage (the step it
ducked today). After all, in Loving v. Virginia (1967), the Court
struck down a state statute that forbade couples to marry across racial lines,
using the 14th Amendment in an identical fashion.
Patience. Gay
marriage is coming. And today’s
decisions are huge: the federal government must now recognize gay marriages,
which extends to them the protection of thousands of federal laws and
regulations (and Edith Windsor, by the way, gets back her $363,000!), and the
State of California proudly joins the list of states allowing gay
nuptials. More battles are coming, but
we will win them all, one by one, until generations in the future will be
amazed there was ever an issue here at all.
--------------------------------------------
Related
Posts:
“Jumping the Broom: How 'Married' are Married Gay
Couples?” July 17, 2011
“Gay Marriage, DOMA, Proposition 8 and the Mysterious
Supreme Court,” January 15, 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
“A Gay Hoosier Lawyer Looks at Indiana’s RFRA:
The Religious Bigot Protection Act,” March 30, 2015; http://douglaswhaley.blogspot.com/2015/03/a-gay-hoosier-lawyer-looks-at-indianas.html;
“Oral Arguments on Gay Marriage in the Supreme Court: What Was and What Wasn’t Said,” April 28, 2015; http://douglaswhaley.blogspot.com/2015/04/oral-arguments-on-gay-marriage-in.html;
“Married at Last! A Gay Lawyer Looks at What the
Supreme Court Actually Said About Same-Sex Marriage,” June 30, 2015; http://douglaswhaley.blogspot.com/2015/06/married-at-last-gay-lawyer-looks-at.html; “A Guide to the Best of My Blog,” April 29, 2013
"Alan Turing: Torturing a Gay Genius to Death," November 26, 2014
I know it was a happy day, but I was hoping for more. Though I do have a few questions.
ReplyDeleteDoes the DOMA case provide extra legal precedent,etc for future cases to rely on?
Would another direct attack on a marriage ban without a standing issue be likely to succeed?
Great article.
ReplyDeleteWill the IRS pay penalties and interest to Edith?
Your article states "Thirteen states now recognize gay marriages as legally valid...." Is that 12 states and the District of Columbia? :-)
Answering the above questions, yes. The DOMA decision will be a strong precedent in all future cases attacking anti-gay marriage statutes and constitutions. Direct attacks without standing issues have a good chance in many, but not all, federal courts, and some state ones as well. The IRS will have to pay interest, but no penalties, and it is 12 states plus DC (I should have said "jurisdictions").
ReplyDelete