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.
D.  Conclusion

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;;
“Oral Arguments on Gay Marriage in the Supreme Court: What Was and What Wasn’t Said,” April 28, 2015;
Married at Last! A Gay Lawyer Looks at What the Supreme Court Actually Said About Same-Sex Marriage,” June 30, 2015;;  “A Guide to the Best of My Blog,” April 29, 2013


  1. I know it was a happy day, but I was hoping for more. Though I do have a few questions.

    Does 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?

  2. Great article.

    Will 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? :-)

  3. 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").


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