The Supreme Court, in a 5-4 decision, has declared that section 3 of the Defense of Marriage Act (DOMA), which says that the federal government only recognizes opposite-sex marriages, is unconstitutional. Henceforth, the same federal benefits of marriage that heterosexual couples enjoy will be available to same-sex couples who are legally married. The opinion is United States v. Windsor. Justice Kennedy wrote for the majority, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts and Justices Scalia, Thomas, and Alito dissented in several opinions.
So yes: come next April 15, married same-sex couples in Massachusetts (and elsewhere) can check “married, filing jointly” on their federal tax returns. It may well be the happiest tax day ever.
On the Proposition 8 case from California, Hollingsworth v. Perry, the Court decided not to decide. By a 5-4 vote, the Court concluded that the strange posture of the case deprived the Court of jurisdiction to decide it, and dismissed it without issuing any decision on whether the 14th Amendment prevents states from recognizing only heterosexual marriages. The lineup in this one was highly unusual: the Chief Justice wrote the majority opinion finding no standing on the part of the Prop 8 proponents, joined by Justices Scalia, Ginsburg, Breyer, and Kagan. Justice Kennedy dissented, arguing that the Court should have proceeded to the merits of the case, joined by Justices Thomas, Alito, and Sotomayor. In addition to dismissing the case before it, the Court also threw out the decision issued by the Court of Appeals for the 9th Circuit, which had the same standing problem. So the only thing left standing in the Prop 8 case is the injunction entered by the federal District Court in California, which held that Prop 8 was unconstitutional and could not be applied in California. That would seem to allow same-sex marriages to resume in the state of California, though the issue is complicated and it’s possible that further litigation regarding the permissible scope of the District Court’s order will ensue. There’s more on the technical aspects of this question in this post at SCOTUSblog.
Needless to say, this is all a very, very big deal, and realistically, I think the best result that could reasonably be expected out of the Supreme Court as it is constituted today. The invalidation of DOMA section 3 has both immense symbolic import and immediate tangible benefits for many thousands of people in this country. And although some will be disappointed that the Court did not go further and declare that Prop 8 was unconstitutional – which could have guaranteed marriage equality throughout the country – I think there are real questions as to whether the Court would have gone that far had it gotten to the merits of the case. More on the flip.
The big question these days in the Supreme Court is whether you can get Justice Kennedy to sign on. Kennedy was willing to say that once the states have recognized the right of same-sex couples to marry, the federal government should respect that – it’s consistent with Kennedy’s general view that states should retain pretty broad authority outside of areas expressly delegated to the federal government by the Constitution, and marriage is certainly one of those. And Kennedy’s opinion in Windsor contains language that proponents of a federal constitutional right of same-sex couples to marry will find encouraging. For instance:
Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community….
The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. In determining whether a law is motived by an improper animus or purpose, “‘[d]iscriminations of an unusual character’” especially require careful consideration.
Kennedy’s recognition of marriage rights as “a dignity and status of immense import” is, well, of immense import. And the language about animus etc. certainly suggests that any law specifically disadvantaging gay people will henceforth be subjected to some form of heightened scrutiny when challenged in federal court, and that augurs well for future cases – though Kennedy didn’t come right out and say that heightened scrutiny is appropriate, so the question of what standard of review is proper in cases like this may not yet be fully resolved.
However, it’s important to note that Kennedy placed a lot of reliance on the fact that the state of New York had already decided to recognize same-sex couples’ right to marry, and he was bothered by federal refusal to recognize what the state did. Whether Kennedy would be willing to take it a step further, and tell states who have refused to recognize same-sex marriage that they must do so, remains an unanswered question – and I think perhaps that’s best, since I have my doubts whether he’s really prepared to take that step. Today’s DOMA decision recognizes state authority and rejects federal interference, and Kennedy is predictably willing to do that; it’s far less clear to me that he’s willing to do essentially the reverse (recognizing federal authority over a state’s decision on what constitutes marriage) with respect to same-sex marriage. And unless and until Kennedy is willing to do so, there aren’t five votes on the Court to recognize a federal right for same-sex couples to get married.
So, for now, the battle for marriage equality will continue state by state. Inevitably, I think, the pro-equality forces are only going to get stronger, and eventually, gay couples throughout this country will be able to get married wherever they please, though it may take a while to get there. Also, the validity of DOMA section 2 – which purports to authorize states to disregard the validity of legal same-sex marriages from other states – was not before the Court today, and remains unresolved. That may be the next battle.
Windsor was clear cut, and so was the decision. States have the right to make marriage laws as they always have, in matters like consanguity, age of consent, and now gender and the Federal government has no power to pick and choose which ones they like.
What I don’t see – even AFTER reading SCOTUSblog – is the issue of officials refusing to enforce laws they don’t like. We had that here with Clean Elections, although that used funding as the mechanism to deny the law. DOES the injunction stand? I don’t see how tht 9th Circuit can decide if something is (federal) Constitutional at the state level and void a valid law. If the injunction relied on the STATE constitution, that would have made sense but I haven’t seen where this was even tried at the state level.
This business of refusing to enforce laws is a new-ish ploy by the Executives, but now governors and the Chief Executive seem to think it’s OK. The only other time I can recall is George Wallace, and troops were sent in over that. Isn’t this kind of lawlessness DANGEROUS? To be clear – I am talking about the practice, not the specific issue. BMG wouldn’t like it if a Governor or Atty General refused to enforce envoirnmental laws, for example, but this seems to say that’s OK.
An executive that is not bound by legislation that the executive doesn’t like seems less like an executive and more like a monarch.
At the federal level, this was one of the larger problems with the last presidential administration– the theory of the “unitary executive,” which is the most un-conservative idea to emerge from the right in many, many decades.
Limits on the authority of the executive should apply in both directions.
Executives have been declining to enforce laws they believe to be unconstitutional for quite sometime. There’s a 1994 memo available from the Office of Legal Counsel that cites to the generally accepted proposition that the executive is not bound to enforce unconstitutional laws with support at least as far back as 1860.
Even Justice Scalia acknowledged in Freytag v. Commissioner (in a concurrence, p. 906) that the executive can ignore laws that are unconstitutional.
This really isn’t a new concept at all.
Presidents take an oath to enforce the constitution. Laws that are contrary to the constitution should not be enforced. I don’t see why you need SCOTUS to make that determination.
As far as I can tell, you’re comparing apples and oranges. There was no significant refusal to “enforce” Prop 8 that I’m aware of. Once Prop 8 went into effect, same-sex marriages stopped in CA. The state did indeed refuse to defend the law in court, but that is quite different from refusing to enforce it. It is not lawlessness – far from it.
Regarding your other, rather confused point: all state laws must be consistent not only with their state Constitutions, but also with the federal Constitution. And it is entirely – indeed, routinely – within the purview of federal courts to consider federal constitutional challenges to state laws.
So, to answer your question: yes, the injunction that was issued by the federal district court in CA is still in effect, and once the stays that were put in place by the various courts of appeals while the appeals were pending are vacated (which they will be in light of today’s ruling), it is absolutely 100% clear that the couples who sued the state over Prop 8 will be permitted to marry. It is very likely, though a tad less than 100% clear to me, that same-sex marriage generally will restart in California because of that same injunction, though it’s conceivable that there will be further litigation over how broadly the injunction applies.
I’m certain you dont mean to regard the neutering of the Voters Rights Act as somehow not about equality… but there it is.
DOMA was always unconstitutional and this just puts the final nail in the coffin. Amen. However much this is one large step forward, the VRA decision is three, or more, steps back…
I was watching a Richard Pryor documentary last night and I had no recollection of his Hollywood Bowl performance in 1977. It does make you think.
More here http://www.bootlegbetty.com/2013/02/05/betteback-1977-a-star-spangled-night-for-rights-turns-sour/#.UcsgUtLkvJg
Obviously not. This post is entirely about what happened today. I already wrote up my thoughts on what happened yesterday – here’s the link, if you missed it.
As for this: “DOMA was always unconstitutional and this just puts the final nail in the coffin” – it’s hard for me to figure out what you mean. Until today, it was being enforced, every day, against legally-married couples. To minimize what happened at the Court today is a mistake. Yes, there is much more to do, and what happened yesterday to the VRA was a bad thing. But if you talk to the right people, they will tell you with tears in their eyes that they never expected to see this day in their lifetimes. What happened today is important. Don’t discount it.