This week the U.S. Supreme Court ended its 2012 term by handing down what will no doubt become its first two important, if not landmark, same-sex marriage decisions. The first case, United States v. Windsor, struck section 3 of the federal Defense of Marriage Act (DOMA) as a deprivation of the equal liberty the Fifth Amendment of the U.S. Constitution grants to all citizens. That provision had declared that for purposes of determining the meaning and applicability of any act of Congress or federal regulation, that "the word 'marriage' means only a legal union between one man and one woman as husband and wife."
The effect of the provision was to limit the federal government, which normally does not get into the business of defining marriage, from granting entitlements and other federal statutory rights to same-sex couples who otherwise would be entitled to such benefits because they were legally married under appropriate state law.
Edith Windsor and Thea Spyer were such a couple, who after a long-standing relationship beginning as domestic partners in 1993 chose to get married in Toronto, Ontario, in 2007. At the time, New York legally recognized their out-of-state marriage and since has granted same-sex couples the right to marry in-state. However, when Spyer died and left her entire estate to Windsor, the IRS would not allow Windsor a marital tax deduction and required her to pay $363,053 in taxes. Subsequently, Windsor sued for a refund of the tax payment. The district court held that Windsor was owed the refund because section 3 of DOMA violated due process and equal protection principles incorporated in the Fifth Amendment. The second circuit subsequently affirmed and also recognized a heightened degree of scrutiny when the classification involves sexual orientation.
The United States, however, chose not to defend the constitutionality of DOMA, in the courts, and the U.S. House of Representatives appointed a Bipartisan Legal Advisory Group (BLAG) to defend the statute. This raised a "standing" question of whether the case could be heard because the parties would not be adverse. However, Justice Kennedy in his majority opinion found that there was sufficient adversity because not only did BLAG raise a significant defense, the government's refusal to pay Windsor the money meant that either she or the government would suffer real injury depending on how the case finally got resolved.
Kennedy next took note of the fact that civil marriages in the United States had always been based on state law saying that "the State's decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import." DOMA's departure from this history and tradition "violates basic due process and equal protection principles applicable to the Federal Government." "'[A] bear desire to harm a politically unpopular group cannot' justify disparate treatment of that group." DOMA's history shows its "principle effect is to identify a subset of state-sanctioned marriages and make them unequal." It burdens the lives of same-sex couples and "humiliates tens of thousands of children now being raised by same-sex couples."
While Kennedy's majority arguments are strong and compelling, they do not totally remove DOMA from the statute books. Section 2 of DOMA which allows a state to not recognize a same-sex marriage of a sister state, under the Full Faith and Credit Clause of the U.S. Constitution was not before the Court and at least four Justices who dissented, Scalia, Thomas, Alito and Chief Justice Roberts, indicated sympathy with the principle that no state need recognize a marriage it didn't agree with. So that issue will no doubt have to be litigated in some future hearing unless Congress acts to repeal the section, which at the moment does not seem likely, given the current makeup of the House of Representatives. Also unclear, as Lambda Legal has noted, is what status Civil Unions will be afforded under federal law now that section 3 of DOMA has been struck.
The second case, Hollingsworth v. Perry, raised a federal constitutional challenge to California's Proposition 8, which amended the California Constitution to limit marriage to only opposite-sex couples following California's Supreme Court determination that the equal protection clause of its state constitution allowed such marriages. Because the California's governor and attorney general refused to defend the case, the district court allowed the proponents of Proposition 8 to defend he constitutionality of Prop 8. Subsequently, the district court found that Proposition 8 violated the Fourteenth Amendment's equal protection and due process clauses, by denying to same-sex couples the fundamental right to marry. The 9th Circuit affirmed the lower court decision but on the narrower ground that an equal protection violation occurred because the right to same-sex marriage had already been found under the California constitution.
In the case before Supreme Court, Chief Justice Roberts, writing for an unusual majority, including Scalia, Ginsburg, Breyer and Kagan, held that the proponents lacked standing to bring the case since any citizen cannot claim a harm just because a state law they may have approved of is not defended. Here the proponents would not be required to do anything or prevented from doing anything and so would suffer no real harm. Interestingly, the denial of standing in this case means that the district court decision applies at least in the Northern District where the court sits. This is because the plaintiffs in the original case had standing. They were injured in not being allowed to marry if Proposition 8 had continued to be the law. No similar injury occurred for the proponents who brought the case at the appellate level. As a consequence California will likely now become the 13th same-sex marriage state if the other districts follow the Northern District's strong constitutional rationale.
For these reasons, I am convinced that the U.S. Supreme Court's same-sex marriage decisions last week were, if not a landmark, certainly fundamental for both for the LGBTQ communities and all who cherish liberty!
Vincent J. Samar is adjunct professor of law at the Illinois Institute of Technology, Chicago-Kent College of Law as well as adjunct professor of philosophy at Loyola University Chicago and Oakton Community College. A longtime community activist, he has written a number of articles and books involving LGBTQ rights.