The same-sex marriage cases
It's Gay Marriage Week at the Supreme Court, with the Court hearing two hours of oral arguments yesterday and today in each of the two cases which present the issue. I normally do criminal stuff here, but as I mentioned on Monday, these cases present the possibility of one of those watershed rulings by the Court, which will have a profound effect on the future of the country. I promised a thumbnail sketch of the cases, the arguments, and the possible outcomes today, so that's what we'll do.We'll start with Hollingsworth v. Perry, which was argued yesterday. Here's the skinny:
Background. In 2000, California voters enacted Proposition 22, which amended the Family Code to provide that "only marriage between a man and a woman is valid or recognized" in the state. Eight years later, the California Supreme Court struck it down, holding that it violated the state constitution's due process and equal protection guarantees. Several months later, things took another turn when California voters, by a 52-48 margin, adopted Proposition 8, which amended the state's constitution to define marriage as only being between a man and woman. Gay marriage supporters took the issue into Federal court. The district court conducted lengthy hearings, and concluded that Proposition 8 violated the due process and equal protection provisions of the 14th Amendment, even on a rational basis test.
The issues. The obvious one is that cited by the district court, but when the 9th Circuit affirmed, it injected a new issue in the mix. Beginning in the 1980's, the more liberal cities in Colorado began prohibiting employment discrimination on the basis of sexual orientation. That led to a 1992 state referendum which prevented cities from doing that. Four years later, in Romer v. Evans, the Supreme Court struck down the state referendum in a 6-3 decision. Whole forests have died to produce the paper analyzing Justice Kennedy's opinion, but an essential part of his ruling seems to be that the referendum was unconstitutional simply because its purpose was impermissible: it was based on nothing more than an animus toward gay people, and sought to deprive them of protection that everybody else enjoyed.
What might happen. Adopting the District Court's decision would have the effect of legalizing gay marriage on a national scale, and that's simply not going to happen. Many liberals, look back at Roe v. Wade and see a situation where the trend toward state's liberalizing abortion laws was halted and replaced with a fiat issued by the Supreme Court, galvanizing opposition to the ruling which has only gained strength since that time. (Justice Ginsburg voiced that opinion in a recent interview. And North Dakota's governor yesterday signed a law which would basically eliminate abortions in that state after about the sixth week of pregnancy.) The votes on the current court are almost certainly not there for doing the same thing for gay marriage.
A Romer type ruling would be more likely, especially considering the timing of Proposition 8. That would limit the effect to California. But there's a third possibility here. The State's elected officials refused to defend the lawsuit to overturn the Proposition, leaving its defense to the initiative's proponents. There's a decent question as to whether they have standing, and the Court might simply rule that they don't, and bypass the whole issue.
The second case is US v. Windsor, and that's likely to provide a much more favorable outcome for gay marriage supporters.
Background. Back in 1996, there were concerns that Hawaii's Supreme Court might declare gay marriage permissible in that state; the panicked response led to the passage, by overwhelming margins (96-0 in the Senate) of the Defense of Marriage Act, or DOMA. Section 3 of that act defined marriage, for all Federal purposes, as - you guessed it - "only a legal union between one man and one woman as husband and wife," and limits the definition of "spouse" to only "a person of the opposite sex." If you did not fall into that category, you were ineligible for the 1,100+ Federal benefits that would be available to a straight couple.
Enter Edith Windsor and Thea Spyer. The two met in 1963, became "engaged" four years later, and continued in a relationship which lasted 44 years. Two years before Spyer's death of multiple sclerosis in 2009, the couple traveled to Canada and were wed there. They returned to New York, and upon Spyer's death Windsor learned that she owed $363,053 in Federal estate taxes as sole beneficiary of Spyer's estate. Despite their legal marriage, DOMA meant that Windsor couldn't claim the spouse's exemption from the estate tax, which would have reduced her tax bill to $0.
The Issues. Windsor's was one of eight lower court decisions, and every one of them went against the government; in fact, the Obama administration has refused to defend the statute. DOMA suffers from the same Romer problems as Proposition 8; some of the arguments voiced in support of the bill in Congress bordered on virulent homophobia. It also represents a major Federal intrusion into domestic relations matters, an area normally reserved for the states. The IRS Code, for example, has numerous provisions which depend on marital status, but leaves it to the state to determine that status. Again, DOMA prohibits Federal benefits to a gay couple, even if the marriage is recognized under the law of the state the couple resides in. The Second Circuit, which ruled in Windsor's favor, did not call for "strict" scrutiny in reviewing DOMA, but did hold that it required "heightened" scrutiny; frankly, there's some question whether the provision could survive a rational basis analysis, given the dearth of evidence that granting gays the right to marry affects heterosexual couples in any way. (In the District Court hearings on Proposition 8, the proponents of the referendum were noticeably unable to offer any argument that it did.)
What might happen. You'd be hard-pressed to find anyone who'd give you even money odds that the Court will uphold DOMA. Actually, Section 3 is the easy one. Section 2 of the Act provides that no state need recognize a same-sex marriage entered into in another state, posing the issue of whether that violates the Full Faith and Credit Clause of the Constitution. What happens when a gay couple married, in Massachusetts, moves to North Carolina and seeks a divorce, with issues of custody and property settlement. Can the North Carolina court refuse to even entertain the case?
That'll be left for another day. The only thing likely to save DOMA is the out the Court has in Perry: standing. As noted, the Obama administration is refusing to defend the law, so the Republican House leadership entered the fray, and has assumed the main defense of the law. In light of the rapidly shifting grounds on the debate, I wouldn't be surprised if the GOP was having second thoughts about the wisdom of their decision.