I know that the word “great” in the title of this post is more than a bit lame, but I’d be willing to bet that for most people who have been waiting for this day, words simply cannot adequately describe the sheer depth and breadth of emotion that today’s Supreme Court rulings have given rise to, so it’s probably best not to spend much time trying.
This morning, the United States Supreme Court, in a 5-4 decision, struck down s. 3 of the Defense of Marriage Act as unconstitutional. Justice Anthony Kennedy, writing for the majority and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, held that DOMA violates the US Constitution’s guarantees of liberty and equal protection as guaranteed by the Fifth Amendment.
Kennedy noted that:
“The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.”
While it’s rare for the Supreme Court to get poetic (and perhaps my background makes me biased), Justice Kennedy was at least as poetic as legalese allows one to be, stating:
“[N]o legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”
The Court also took a first step that few people will focus on today, but that will be important first step in future gay rights cases. Buried on page 19 of the majority opinion is a suggestion that where the law discriminates against LGBT individuals, there will be some form of heightened scrutiny (in this case labelled as “careful consideration”) as to whether or not the motivation for the discrimination is permissible. Up until now, the generally accepted test (in legalese, the standard of review) has been the rational basis test, which says that as long as there’s some halfway rational purpose to the law, it won’t be found to be discriminatory. This new test could have an impact in future cases, requiring those who discriminate to pass a stricter test. This line was almost undoubtedly inserted at the request of Justice Kagan, who asked a question at oral arguments that mirrored almost exactly the logic behind this new test.
So What Does The Ruling Mean?
As I noted in my post yesterday, today’s ruling won’t force states that don’t recognize same-sex marriage to start recognizing them. However, what it does do is make life much easier for same-sex couples who get married in states that allow it, or that do so in other countries (like Canada) that allow it. It does so by forcing the US Government to recognize those marriages, something that has not happened until now. This means that same-sex couples can now file taxes jointly, receive federal benefits, have the right not to incriminate their spouses in federal proceedings, and in the case of binational couples (where one partner is an American and the other is from another country), for the American spouse to sponsor his or her partner for immigration to the United States, along with about 1,100 other federal benefits.
There are still, however, some questions left to deal with. A married same-sex couple that lives in a state that recognizes same-sex marriage will get their federal benefits, because the ruling states that the federal government must accept whatever definition the states adopt. The problem, of course, is what happens if that couple moves. For example, what happens to a same-sex couple that moves from New York (which recognizes same-sex marriage) to Texas (which doesn’t)? Do they lose their federal benefits when they move, or do they keep them? Nobody is particularly clear as to whether these benefits, once gained, are permanent, or if they are reliant on choosing to remain in states that also recognize same-sex marriage. This is one of the wrinkles that will have to be ironed out, either in future cases, or by Congress passing a law fixing the problem somehow.
In the second marriage ruling today, the Supreme Court dealt with Proposition 8, California’s ban on same-sex marriage passed in 2008. As I predicted yesterday, the Supreme Court took the procedural escape, and they took the escape that was legally correct but incredibly messy.
It’s worth noting here that when Proposition 8 was passed, the Governor and Attorney-General decided not to defend it in court, and refused to appeal when a federal judge found it unconstitutional. As a result, the people who put Proposition 8 on the ballot stepped in to defend it instead. As I mentioned yesterday, federal courts are incredibly picky about who they allow to bring cases before them, and Chief Justice Roberts emphasized that today, writing:
“We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.”
In short, the Supreme Court said that they’ve already made the rules clear, and they’re not changing their minds.
So What Does The Ruling Mean?
In short, nobody’s really sure what happens now. What is clear right now is that there is no Supreme Court ruling on whether or not Proposition 8 is constitutional. Further, since supporters of Proposition 8 had no right to defend the law, it follows that they had no right to defend it in appeals court. That means that the decision from the Ninth Circuit gets wiped out as well, and the trial court’s decision to strike down Proposition 8 is all we’re left with.
The problem is trying to figure out what the impact is of the trial court’s decision. The appeals court decision was clearly binding on the entire state of California. However, trial courts are set up geographically, and there are multiple geographical districts in the state of California. That means that there is some disagreement as to whether or not a judge in one district can make a ruling that affects other districts. Beyond this, only two counties (Los Angeles and Alameda) were identified in the initial lawsuit, which could lead officials in other counties to decide that they are not bound by the decision, and therefore continue to enforce Proposition 8.
There are already a few solutions in sight. California Governor Jerry Brown, and Attorney-General Kamala Harris have already stated that they believe that the original ruling applies statewide, and that all county clerks will be directed to start issuing marriage licenses to same-sex couples. However, it remains conceivable, and in fact quite likely, that some county clerks will defy these directions. In the end, as a practical matter, it will be incredibly easy to get a marriage license in most of California, but there will probably be some pockets of resistance. This will either require another lawsuit to clear up, or for the people of California to clean up the mess they created in 2008 by repealing Proposition 8 during next year’s elections.
However, all these problems are best left for another day. Equal rights took a huge step forward today, and there is great cause for celebration. Taken alongside advances for marriage equality in Minnesota, Rhode Island, and Delaware this past May, it’s fairly clear what direction this debate is moving in, and that’s a pretty good reason to raise a glass of champagne and then get ready for the battles ahead.
Submitted By: Sameer Ismail
Sameer Ismail has been a political consultant for a number of years. He holds degrees in Political Science and Law.
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