SCAREDY SCOTUS?

In this entry I want to answer three questions:  What were the decisions about?  What did the Supreme Court of the U.S. (SCOTUS) decide?  What do the decisions mean for the future of same-sex marriage?

What were the decisions about?

U.S. v. Windsor decides whether or not the Federal “Defense of Marriage Act,” or DOMA, is constitutional.  This law defines marriage as solely between a man and a woman and this affects any and all Federal laws concerning marriage; for example, a same-sex couple married in Massachusetts still cannot file their Federal taxes as a married couple.

A Federal district judge and the Second Circuit Court of Appeals already have struck down DOMA as unconstitutional.  There are two key parts to these earlier decisions: First, what “level of scrutiny” should laws that discriminate against homosexuals receive?  The Court of Appeals said that in light of a history of discrimination against homosexuality, such laws should receive “intermediate scrutiny”—a standard not as high as the “strict scrutiny” test used for racial discrimination, but higher than a mere “rational basis” test.  “Intermediate scrutiny” is the standard normally applied to discrimination based on sex.  The standard requires that the government have an important or compelling rationale to discriminate against a particular group.  The Iowa Supreme Court in 2009 ruled in Varnum v. Brien that the arguments for prohibiting same-sex marriage must be “exceedingly persuasive” to be constitutional (763 N.W.2d 862 [Iowa 2009]).

The second key part follows from the first: Does the law in question pass the test?  In short, are there “exceedingly persuasive” reasons to prohibit same-sex marriage?  If not, such a law violates the 5th and 14th Amendments’ requirement for equal protection under the law and would be unconstitutional.  Both the Federal district judge and the Court of Appeals found no such persuasive rationale and hence both struck down DOMA.

The additional issue before SCOTUS involves the issue of “standing.”  Since the Department of Justice agreed that DOMA was unconstitutional, does that agreement deprive SCOTUS of jurisdiction?  Further, does the Congressional group that brought suit (BLAG, or the “Bipartisan Legal Advisory Group”) have legal standing to challenge the lower courts’ rulings?  A good deal of time was spent on these questions during the Oral Argument before SCOTUS earlier this year.

Hollingsworthv. Perry is a decision about whether California’s “Prop 8,” passed in the 2008 election, is constitutional.  Prop 8 was approved months after the California Supreme Court ruled that the prohibition of same-sex marriage was unconstitutional.  For that reason, the vote effectively took away a right that had been extended to homosexual citizens for several months.  Again, a Federal district court judge and an appellate court (in this case the 9th Circuit Court of Appeals) struck down Prop 8 as unconstitutional.  The US Supreme Court had ruled in Romer v. Evans (1996) that homosexuals could not be singled out as a group to have their rights denied, as Colorado’s “Amendment 2” had done.  In striking down the Prop 8 vote, the 9th Circuit Court echoed the logic of Romer.

As in the DOMA case, the question of legal standing must be determined.  In Hollingsworth, the state government of California agreed with the court decisions that struck down Prop 8, so one issue SCOTUS must decide is whether a group of “concerned citizens” who support Prop 8 and helped to put it on the ballot in 2008 have the legal standing to challenge the court decisions.

What did the Court decide?

U.S. v.Windsor:  SCOTUS grants standing to the relevant parties and claims it has appropriate jurisdiction.  Then SCOTUS struck down DOMA as unconstitutional.  This is significant because they could have let DOMA "die" on procedural grounds by denying standing.  But by a 5-4 vote, the Court ruled that DOMA is unconstitutional because it deprives a class of people of their rights, thus denying them equal protection.  A key holding reads: "DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. It also 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."

The majority opinion emphasizes that states traditional regulate marriage and DOMA is suspect for violating that federalist tradition.  And because it unfairly burdens same-sex marriages that are legal in certain states, it deprives same-sex couples of equal liberty.  Congress violated a "long-established precent" of allowing states to define marriage specifically to discriminate against same-sex couples, which "violates basic due process and equal protection principles applicable to the Federal Government."

(For the purposes of this entry, I am going to skip a discussion of the lengthy dissenting opinions.)

So, DOMA is dead, but the Court stops short of "creating" a basic constitutional right to marry for all same-sex couples.  Nonetheless, married same-sex couples will now have the same rights under Federal law that opposite-sex couples have, and that is huge news.

Hollingsworth v. Perry: The decision in the Prop 8 case is somewhat convoluted.  The Court, in effect, threw out the case based on denying standing to those appealing the decision, which was a group of citizens seeking to support Prop 8.  The Court instructed the 9th Circuit Court of Appeals that they wrongly granted jurisdiction.  

By denying jurisdiction, the Court leaves in place the lower court ruling that Prop 8 is unconstitutional.  So Prop 8 is dead, at least for the moment pending subsequent legal actions.  But the Court evaded any larger issues involving whether same sex couples should have a constitutionally recognized right to marry.

What do the decisions mean for the future of same-sex marriage?

There is no question that today's rulings are victories for advocates of same-sex marriage.  The death of DOMA is huge, since it gives the same rights to same-sex marriages in states where they are legal that opposite-sex couples have.  And it is also big news that same-sex marriage will again be legal in California, barring the rise of what I would call Zombie Prop 8 through efforts of advocates to challenge the trial court's ruling on other grounds.  Overall, today's decisions contribute to the national trend to recognize same-sex marriages.

At the same time, the Court refrained from establishing a clear constitutional right to marry for same-sex couples in all states.  Indeed, the Court went out of its way to avoid the question of whether a "rational case" can be made to prohibit same-sex marriage.  This is not a surprise, in some respects, since it is clear that the Court prefers to allow the matter to percolate through state legislatures.  But it is, in my opinion, a short-sighted and somewhat cowardly position to take.

Why?  Well, think back to the 1960s.  Until 1967, states were allowed to prohibit marriages between whites and blacks.  Not unlike the present time, where homosexuals have many recognized legal rights across the country, most forms of overt racial discrimination in matters of law had been struck down.  But it wasn't until 1967 in Loving v. Virginia that SCOTUS finally struck down state laws outlawing marriages between people of different races.  

So today we did not get the same-sex equivalent to Loving.  Indeed, the Court went out of its way to avoid making such a decision.  The result is a situation not unlike that faced by mixed-race couples before 1967:  Your ability to marry depends on what the state legislature decides.  Given the huge majorities in some southern states who oppose same-sex marriage, it could be many years before the right to marry is extended to same-sex couples in every state in the U.S.  Nate Silver famously predicted that 44 states will approve same-sex marriage by 2020.  Even if he is correct, that means 6 states would still discriminate against same-sex couples.  

Eventually the Court will recognize a legal right to marry for same-sex marriage.  Not only is this a safe claim from a political standpoint eventually, but the repeated failure of opponents of same-sex marriage to win any substantive reason to deny same-sex marriage in any state or Federal courts over the past few years suggests that further delays in recognizing a legal right to marry is mere politics, and hence mere cowardice.