By Joseph Celentino, THELAW.TV
In 2004, Massachusetts became the first state to allow same-sex marriage after the state’s Supreme Court ruled that restricting marriage to heterosexuals violated the state constitution. Since then, eight other states have adopted laws allowing same-sex couples to marry.
Maryland and Maine, approved same-sex marriage during the 2012 general election and Washington voters upheld a law signed by Governor Chris Gregoire earlier that year. Encouraged by these victories, gay rights activists have continued to push legislatures across the country to adopt similar laws.
Obama also became the first sitting president to publicly support same-sex marriage last May. And a Gallup Poll released the same month indicated that 50 percent of Americans agreed with the president’s position.
Against this background, the U.S. Supreme Court’s decision to hear two challenges to same-sex marriage laws, announced in early December 2012, sets the stage for a watershed decision on gay rights.
The first challenge, Hollingsworth v. Perry, involves California’s Proposition 8. In 2008, six months after the California Supreme Court ruled that the right to marry “extends equally to all, gay and straight alike,” voters amended the state constitution to prevent same-sex marriages.
The Defense of Marriage Act, passed by Congress in 1996, is the focus of the second case, U.S. v. Windsor. DOMA denies benefits to gay and lesbian couples, even if they are legally married in one of the nine states which allow such unions.
The Court is expected to hear oral arguments in the case in March, though no official date has been set. But how the Court will rule is far from certain. Based on Court precedent and the parties’ briefs, three possible outcomes appear likely:
No Standing to Sue
The Justice Department defended DOMA in court until February 2011, when Obama announced that he considers the law unconstitutional. In response, the House of Representatives’ Bipartisan Legal Advisory Group took up the cause, voting 3-2 to defend the law.
Though lower courts have not yet questioned the BLAG’s standing, the Justices appointed Harvard Law School Professor Vicki C. Jackson to prepare oral arguments on the issue. Jackson will also argue that the Obama administration’s decision not to defend the law renders the case moot. Because courts can only address live controversies, such a determination would spell doom for DOMA defenders.
A similar issue exists in the Prop 8 case. After San Francisco Judge Vaughn Walker found the measure unconstitutional in 2010, then-California Governor Arnold Schwarzenegger directed his Attorney General, Jerry Brown, to stop defending the law.
A coalition of Prop 8 supporters stepped in to fill the gap. The 9th Circuit ultimately found the group to have standing, noting that denying standing would give legislators de facto veto power over voter-passed initiatives.
Issues of standing in the California case are covered in the parties’ briefs and are expected to be the first point addressed at oral argument.
Same-Sex Marriage is Protected
DOMA challengers point to the disparate effects the federal law has on gay and lesbian citizens. Ms. Edith Windsor, named plaintiff in the case, was required to pay over $363,000 in federal taxes on her late spouse’s estate. Though the couple was married under New York law, the IRS “spousal exemption” was inapplicable because Windsor was not married to a man. Over 1,000 federal programs are subject to DOMA’s restrictions.
Such discrimination violates the Equal Protection Clause of the Fourteenth Amendment, challengers claim, and is not rationally related to a legitimate government interest.
In its ruling, the 2nd circuit determined that a heightened standard of scrutiny must be applied. “[R]ational basis review should be more demanding when there are ‘historic patterns of disadvantage suffered by the group adversely affected by the statute,’” Chief Judge Dennis Jacobs wrote for the majority.
The 9th Circuit’s decision to striking down Prop 8 was issued on much narrower Fourteenth Amendment grounds. Because California voters acted to take away a previously-established right, the federal appeals court ruled, the constitutional amendment amounted to discrimination.
Despite the narrow ruling, which some legal scholars believe was crafted to avoid Supreme Court review, 9th Circuit Judge Stephen Reinhardt’s opinion clearly contemplates the larger constitutional issue.
“Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples,” he wrote.
No Constitutional Protection for Same-sex Marriage
DOMA supporters argue that the federal government maintains a legitimate interest in promoting the traditional definition of marriage. These include “uniform administration of federal law notwithstanding recognition of same-sex marriage in some states but not others, the protection of traditional marriage generally, and the encouragement of ‘responsible’ procreation,” as the 2nd Circuit summarized in its opinion.
If the Court applies rational-basis review, it will only have to determine that the government’s interest is legitimate and that DOMA is rationally-related to that interest. Courts rarely strike down legislation that is subject to rational-basis review.
In the California case, supporters of Prop 8 claim that states may decide whether or not to acknowledge same-sex marriages. Currently, 36 states only recognize heterosexual marriages. 31 of these have passed constitutional amendments, preventing state judges from overturning the measures.
A ruling upholding Prop 8 would be a major setback for gay rights advocates, who would then have to fight same-sex marriage opponents in each state.
Under DOMA, states may also refuse to acknowledge same-sex marriages that occurred in other states. Though gay rights advocates have claimed this provision violates the Full Faith and Credit Clause, which requires states to honor the legislative measures and court judgments of other states, the Supreme Court is not expected to address the issue.
“I tend to suspect that the Court will come to champion gay rights in both the DOMA and Prop 8 cases,” Martin Sweet, attorney with THELAW.TV, predicted. “The ugly and pernicious discrimination between heterosexuals and homosexuals may not get heightened scrutiny, but seems wholly irrational.”
“Even assuming the Justices split along ideological lines, Justice Anthony Kennedy is likely to consider the laws irrational forms of discrimination.”
Sweet noted that Kennedy was in the majority in Lawrence v. Texas and Romer v. Evans. On privacy grounds, the Justices in Lawrence struck down a Texas law criminalizing homosexual sodomy. Romer struck down a Colorado amendment to the state constitution that forbade municipalities from passing laws outlawing discrimination against homosexuals.
Though Kennedy’s swing vote has proven the deciding factor in many Supreme Court cases, it was Chief Justice John Roberts whose opinion ultimately decided the fate of Obamacare last June.
“We should note that whatever the Court decides, that the politics of implementation still matter,” Sweet concluded, “The battle for equality doesn’t automatically end with a Supreme Court ruling.”