Yesterday was a landmark day for supporters of gay marriage. In a rapidly changing cultural environment, SCOTUS made incremental rulings on two legal cases that will have profound implications for the nation, but, for at least the moment, are generally consistent with evolving public opinion on the issue of marriage equality.
Lost in the initial media jubilation over the decisions are the vastly distorted nature and scope of the Supreme Court’s rulings as reported, alleging judgments that were not made as well as impacts that are still undecided. On the other side, there is only a dawning realization of the longer-term implications of the spade-work that SCOTUS has put in place, almost certainly teeing up future Supreme Court decisions on gay marriage as well as the more fundamental question of the consequences of federal government involvement in, and recognition of, “domestic relationships.”
Defense of Marriage Act (DOMA)
In a 5-4 decision, the Supreme’s ruled that Section 3 of DOMA was an unconstitutional infringement on Fifth Amendment rights ensuring equal protection under the law. According to the majority opinion, the rationale for the decision was deeply rooted in the legal and cultural history of the US, where “domestic relationships” have been the (near) exclusive providence of states. The majority saw DOMA as an infringement on state sovereignty given the long held precedent of state supervision of marriage, and struck it down accordingly.
DOMA section 3 states: “Definition of marriage. In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
With that provision now ruled unconstitutional, couples that will see the most immediate impact are those who live in and were married in the 13 states and District of Columbia that will recognize same-sex marriages, effective August 1st.
According to a GAO study, there are 1,138 “federal statutory provisions classified to the United States Code in which benefits, rights, and privileges are contingent on marital status or in which marital status is a factor.” This includes, but is not limited to, Social Security, housing, food stamps, veteran’s benefits – including pensions and survivor benefits- taxes on income, estates, gifts, and property sales. In the wake of the ruling, the Justice Department has set up a task force to evaluate and modify these rules to conform to the SCOTUS decision, and residents of those 14 localities will immediately be eligible for equal treatment under those rules and regulations.
Next to be impacted will be state-recognized, same-sex marriages where one person (at least) is a federal employee. The SCOTUS decision allows the federal government to immediately take action to ensure that there are no marriage distinctions based on gender. At least at this writing, that would include federal employees living in states that do not recognize same sex marriage. It is yet to be seen whether “non-marriage” states would contest this.
A much more complicated question will involve same sex couples who were married in a state that recognizes same sex marriage, but who reside in a state that does not. Here, federal regulations are contradictory and confusing.
For instance, for the purposes of filing income taxes, the IRS uses a “state of residence” test for marriage. If a couple was married in Massachusetts, but lives in Alabama, they would not be eligible to file jointly. Other federal programs, however, test marriage based on where the ceremony was performed. If the state has recognized same-sex marriage, then the test is satisfied, regardless of where the couple is located geographically. This will take time to sort out, and is sure to spark a new round of litigation.
For all the celebration after the rulings, it is worth pointing out what SCOTUS did not do on DOMA. The Supremes did not rule the entire statute unconstitutional – only Section 3 of the law. Section 2 remains intact and thus, constitutional. It states, “Powers reserved to the states – No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”
A same sex marriage in Iowa or Connecticut will still not be recognized at the state level if the couple lives in more than 35 other states.
Proposition 8
This had turned into a badly misunderstood decision where the practical result of the SCOTUS ruling (resumption of same-sex marriage in California) is claimed as the intent of the Court. That is simply not the case.
SCOTUS did not rule on same-sex marriages in California – period.
Instead, the Supremes confined their discussion and ruling to legal and court procedure, and whether the parties that brought the suit to the Supreme Court actually had “standing”; “a status where a litigant seeks remedy for personal or tangible harm.”
SCOTUS ruled that the petitioners in the case – advocates of Prop 8 who stepped in when the elected leaders of California refused to defend the law – had a “generalized grievance” but that this status did not meet the standard for standing. As a result, the petitioners did not have standing to appeal the original District Court order holding Prop 8 unconstitutional for the State of California. The result was to effectively nullify the people’s vote and legalize same-sex marriages in California through judicial fiat. By taking this approach, SCOTUS side-stepped provocative and consequential questions, legitimately raised in this case. Most important here is the phenomenon of intentional government inaction.
The governor of California and his administration refused to defend Prop 8, though it passed overwhelmingly in 2008 by a democratic process long used in California to amend its Constitution by ballot imitative. As SCOTUS has refused to recognize the standing of the substitute group of Prop 8 supporters as legitimate litigants (even though the CA Supreme Court found that they had standing) the California government has effectively created a precedent where executive refusal to defend a duly created law – by popular referendum no less – would be sufficient to overturn the law judicially, in contravention of voter intent.
That has wide-ranging implications for the other 26 states that use ballot initiatives as a tool to promote direct citizen involvement in government.
It goes without saying that by refusing to look more substantively at the Prop 8 case, that SCOTUS has guaranteed additional litigation that may ultimately end up on its docket in the near future. At best, the SCOTUS decision has delayed a reckoning. Which is the take away when you look at the rulings more broadly, as well.
As for DOMA, the majority decision, while defusing the social issue for the moment, is hopeless illogical. The substance of the opinion creates a regime of deference to the states and federalism generally, based on historical precedent. But in declaring DOMA unconstitutional, the Court cited 5th amendment viloations, specifically the words, “No person shall… be deprived of life, liberty, or property.”
You cannot reconcile federal deference to unique state policy objectives (federalism), with the obvious disparity of those objectives as it applies to marriage, if the Court has already found that one form of treatment is objectionable under the 5th Amendment. Indeed, it is hard not to conclude that the Court has constructed a legal structure crudely analogous to Plessey v. Ferguson (1896) the landmark case which created the noxious racial standard of “separate but equal.”
The DOMA ruling will also create new tension and pressure in states that have passed domestic partnership laws, but have not addressed or have otherwise banned same-sex marriage. These non-marriage, domestic arrangements are not covered by the SCOTUS ruling. However, now that the federal government will be providing recognition to states that support same-sex marriage as a standard, there will be a material advantage – and impetuous – for same-sex marriage status that was not present when most of the marriage bans were passed, and partnerships sufficed Count on re-litigation by ballot or legislature, or new suits that claim inferior status.
Finally there is the issue of marriage itself as a defined institution, with historical roots that date back more than 2000 years.
Until the recent past, marriage was understood only as a heterosexual institution in a world where other, informal, domestic arrangements have been common for as long as there have been men and women. The Court’s ruling yesterday eliminates the sole distinction that has made marriage unique for 2,000 years. In doing so, it necessarily blows open the definition of marriage to other domestic arrangements that may now claim material injury based on the same-sex marriage ruling.
For instance, what would be the distinguishing characteristic in ruling against equal status for polyamorous relationships? Or polygamy? These are examples normally reserved for anti-gay scare tactics, and lets be clear, that is not the purpose here. But seriously, what is the controlling legal principle now that confirms status on same-sex unions, but denies it to devout Muslims in Detroit or retro-Mormons in Salt Lake City who seek standing for polyamorous relationships? What, beyond arbitrary social bias, prevents recognition of those unions now that the man-woman definition is no longer operative?
These are the existential issues that the nation will have to face in the months and years ahead. For those most involved in the issue on both sides, it makes any vacancy and new appointment to SCOTUS of paramount importance.