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The Supreme Court decisions on DOMA and Prop 8 are expected to come down this month. We'll soon find out if the Court has chosen to advance the cause of marriage equality, or if it will it leave it for another day.

Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

The Defense of Marriage Act


In 2007 Edie Windsor married Thea Spyer after already being together for 40 years. When Spyer died, in 2009, their home state of New York recognized marriage equality, but because of the Defense of Marriage Act (DOMA), the federal law that defines marriage as a union between one man and one woman, the federal government did not. As a result, Windsor was faced with paying more than $363,000 in federal estate taxes because Spyer had left her estate to Windsor. Had the federal government recognized their marriage and given it the same status as opposite-sex married couples in the state, Windsor would not have to pay any estate taxes.

But it didn't, and Windsor sued, arguing DOMA violates Equal Protection protections and seeking a refund in her estate tax bill. In October 2012 the Second Circuit Court of Appeals ruled DOMA was unconstitutional. In that decision, the court for the first time held that when government passes laws that discriminate against gay and lesbian individuals those laws will be presumed unconstitutional and that the must have a compelling reason to justify that discrimination.  

The Supreme Court now has to answer those two questions: Is Section 3 of DOMA (the part of the law that defines marriage) constitutional, and do gay and lesbian individuals qualify as a protected class for purposes constitutional protections? There are three ways the Court could answer those questions.

1. DOMA Is Unconstitutional  

Equality advocates are hoping for a ruling from the Supreme Court that would broadly declare DOMAunconstitutional. Should the Supreme Court strike DOMA in its entirety, then same-sex couples who receive marriage licenses in the 12 states and District of Columbia that recognize same-sex marriages will enjoy the benefits of more than 1,000 federal laws, benefits, programs, and protections that currently favor opposite-sex marriages. A ruling declaring DOMA unconstitutional would likely have no impact on marriage equality bans though.  

If the Court does rule DOMA unconstitutional, it could do so via several different analytical tracts. First, the Supreme Court could issue a sweeping ruling under the equal protection clause of the 14th Amendment to the U.S. Constitution. Historically the courts have applied the equal protection clause to protect against the government unfairly infringing on the rights of specific groups and to ensure that certain fundamental rights such as marriage receive heightened legal protection. Advocates have argued that DOMA violates the 14th Amendment both because it targets a specific group of people for unequal treatment and because it affects the fundamental right to marriage.  

If the Supreme Court relies on the 14th Amendment to strike DOMA and rule that LGBTQ individuals make up a class that should receive heightened protections because their history of being discriminated against, then the ruling could reach beyond invalidating DOMA and would mean that any law -- state or federal -- that treats gay or lesbian individuals differently based on their status as gay or lesbian would likely be struck down. That kind of broad ruling is not very likely though, especially given the conservative majority on the Court. But that doesn't mean hope is lost. The Court doesn't have to decide the issue of gay and lesbian people as a protected class to strike down DOMA. The Court could rule that because DOMA does not serve legitimate governmental interests it is unconstitutional. Typically, evidence of animosity toward a particular group and the desire to impose a set of morals on the public are not considered by the courts legitimate reasons for the government to pass a law. If ever a law fit that example, it's DOMA.  

There is one other way the Court could find DOMA unconstitutional, and that is through some variation of a "states' rights" or federalism argument. During oral arguments Justice Anthony Kennedyseemed very concerned with whether or not the federal government had any role in defining marriage to begin with. According to this reasoning, Congress never had the authority to pass DOMA in the first place since it is an attempt to regulate what is traditionally considered within the power and regulation of the states.  

The states' rights theory is not likely to get a majority of votes, but it could be a way for the conservatives on the court to strike DOMA without advancing LGTBQ equality beyond the issue of marriage like a broad 14th Amendment ruling would. But such a decision would be a short-term win, as conservatives have argued federalism concerns invalidate the majority of the social safety net programs. Should the Roberts Court give conservatives broad legal reasoning to support that theory then we can expect to see a host of new legal challenges to everything from Social Security benefits to Medicare and Title X programs.

2. DOMA Is Constitutional  

As hard as it is to imagine, the Court could find Section 3 of DOMA constitutional. Should that happen, then those legally married same-sex couples in the 12 states and Washington, D.C., that recognize marriage equality will continue to face systematic discrimination and be denied equal protection under the law as well as access to federal benefits related to more than 1,000 federal laws and programs.

3. SCOTUS Punts on the Merits of the Case

If Chief Justice John Roberts is concerned with his legacy and the impact of a decision either embracing or rejecting marriage equality, there is one way the Court could avoid the issue all together: dismiss the challenge for a lack of standing.  

Before a party can bring a case in federal court, they must be able to show they have constitutional standing. That means they must be able to show that they have a legal injury before the court can make a substantive decision on the case. United States v. Windsor is a unique case because typically the federal government defends federal law. But in this case the Obama administration agreed that DOMA was unconstitutional and would not defend it. This drove conservatives bonkers, so House Republicans called upon the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives to step in and defend DOMA. But Edie Windsor won her case at a lower level, and that means she is no longer injured under the law. So before the merits of Section 3 of DOMA can be decided, the Court must therefore decide whether BLAG's defense of DOMA is sufficient for the case to move forward -- that is, does BLAG have the standing necessary to justify the federal courts exercising its power at this time?  

If the Court decides that House Republicans do not have standing to defend it, at a minimum Edie Windsor gets a tax refund of more than $363,000. This outcome would do nothing for marriage equality though, and would not strike down Section 3 of DOMA. To then receive similar benefits as Windsor, all other legally married same-sex couples seeking benefits under federal law would need to bring their own claim of discrimination until DOMA is repealed.

California's Proposition 8  

In May 2008 the California Supreme Court issued a historic ruling, holding that denying same-sex couples the recognition of marriage violated the equal protection clause of the California Constitution. Six months later, and after a massive campaign fueled by religious institutions, just over 50 percent of California voters overruled that decision and passed Proposition 8. The law defines marriage as the union between one man and one woman with no mention of civil unions. Its passage effectively stripped legally married same-sex couples in California of their rights.  

After an extensive legal challenge that included a lengthy trial on the merits of Prop 8, a federal district court and a federal appeals court both ruled that the California constitutional amendment violates the due process and equal protection clauses of the U.S. Constitution.

  Now, the Supreme Court will decide, in Hollingsworth v. Perry, whether Prop 8 can limit the fundamental right to marry and whether that fundamental right applies regardless of sexual orientation.  

1. Proposition 8 Is Unconstitutional  

If the Supreme Court were to rule that Proposition 8 is unconstitutional, it would mean at a minimum that LGBTQ couples would be able to marry in California. But how the Court does so is critically important to the scope of the impact of the decision.  

There are essentially three main avenues for the Court to come to this conclusion. If the Court were to strike down Proposition 8 using an equal protection analysis under the 14th Amendment, the rationale behind the decision would likely apply to all 50 states. That means that laws prohibiting marriage equality would also fail. This is the broadest possible ruling and one that would be historic in terms of advancing the issue of marriage equality. For that reason alone such a ruling is not likely.  

Alternatively, the Court could hold that California was not free to provide same-sex couples with all the benefits and burdens of marriage through civil unions while withholding the designation of "marriage." This is the outcome suggested by the Obama administration in its amicus brief. Under this reasoning, bans on marriage equality in those states that have "everything but marriage" civil unions or domestic partnerships are unconstitutional. A decision using this rationale would have broader reach but would still not have national impact since it would apply only to the eight states that allow these civil unions: California, Colorado, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Wisconsin.  

Finally, the Court could invalidate Prop 8 by ruling that the U.S. Constitution's due process clause prohibits California from taking away the right to marriage for same-sex couples once that right had been established by the California Supreme Court ruling. If the Court takes this view, the decision would be a narrow application only relevant to California, and marriage equality bans in other states would survive.

2. Prop 8 Is Upheld


For the Supreme Court to find Prop 8 constitutional, it would have to reverse the Ninth Circuit Court of Appeals decision and rule that Prop 8 does not violate the equal protection clause. But there are a lot of procedural hurdles to clear before such a ruling would be possible. The lower courts intentionally avoided this specific issue, so it would be a reach for the Roberts Court to do so. But if it did, then amending or revising the California Constitution via a ballot proposition would be required to undo Prop 8.  

3. SCOTUS Avoids the Merits of the Case on Procedural Issues  

Similar to the DOMA case, the Court could avoid the substantive issue of marriage equality and deal with the case before it on procedural grounds. One option for the Court is to decide that supporters of Prop 8 were not a proper party to the case because they did not sustain an "injury" under federal law and therefore lacked standing to appeal the lower court's judgment to strike it down. In this scenario, the decision would only apply to California, the district court decision declaring Prop 8 unconstitutional would stand, and gay and lesbian people would have the right to marry in California.  

Finally, the Supreme Court also has the power to effectively change its mind and decide that it was wrong to take the case to begin with. This is an unlikely scenario -- and not just because it would mean the Supreme Court justices admitting they were wrong. But it is possible, and if it were to happen then the Ninth Circuit decision declaring Prop 8 unconstitutional will stand, apply only to California, upholding the right of gay and lesbian people to marry in California alone.

Originally posted to RH Reality Check on Wed Jun 12, 2013 at 12:11 PM PDT.

Also republished by Kossacks for Marriage Equality.

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Comment Preferences

  •  If a Lower Court Found For Her, Doesn't It (0+ / 0-)

    strike down that part of the law at least for all the similar cases within that jurisdiction?

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Wed Jun 12, 2013 at 12:17:49 PM PDT

    •  That jurisdiction is California, (1+ / 0-)
      Recommended by:
      Adam B

      since the ruling would be a district court ruling.  A narrow ruling (point three) on Perry would make marriage equality the rule in CA, but would have no effect on other states.

      With the Decision Points Theater, the George W. Bush Presidential Library becomes the very first Presidential Library to feature a Fiction Section.

      by Its the Supreme Court Stupid on Wed Jun 12, 2013 at 12:27:44 PM PDT

      [ Parent ]

      •  Gooserock is referring to Windsor and DOMA (1+ / 0-)

        not to Prop 8. At least as I understand the question.

        Not being an attorney I can't say anything definitive as to how things would play out if the court found that nobody had standing to appeal the Windsor decision and I will have to rely on a common sense understanding of how things "should" operate (which is risky when considering points of law). If I understand correctly, were the court to determine that nobody has standing to appeal the lower court's ruling in the Windsor case, it is possible, though not certain, that Edie Windsor would be the only person to come out ahead. It is also possible however that the courts would view the outcome of the case as applying throughout the Second Circuit. This would of course create a situation where Section 3 of DOMA continues to apply in all states except those within the Second Circuit--a situation that is untenable even in the very short run and which would certainly give rise to additional challenges to DOMA in other jurisdictions where there are states that have marriage equality. In this context it is interesting to me that the court chose to accept only the Windsor case and not grant expedited review on cases currently in process in the First and Ninth Circuits. Perhaps this signals an intent to issue a wider-ranging ruling...and perhaps it does not.

        •  Ah. I had forgotten about the BLAG (1+ / 0-)
          Recommended by:

          standing issue on Windsor.

          With the Decision Points Theater, the George W. Bush Presidential Library becomes the very first Presidential Library to feature a Fiction Section.

          by Its the Supreme Court Stupid on Wed Jun 12, 2013 at 02:51:34 PM PDT

          [ Parent ]

          •  One additional note on Windsor (2+ / 0-)

            If the case is decided on procedural grounds and the Windsor's suit is upheld, it could also mean that every gay or lesbian couple or survivor would need to file suit in order to be treated equally with reference to the tax code. This will also be obnoxious and awkward but at least they will have the original decision as a sound basis for filing suit. At some point the court is going to need to take on the merits of DOMA.

            I can foresee a possible situation by which a major corporation files suit based on their need to be able to treat their employees within different jurisdictions consistently for tax purposes. As things stand now, those corporations which have legally married gay and lesbian employees face a nightmare of conflicting tax regulations.

  •  My prediction (for what it is worth) (2+ / 0-)
    Recommended by:
    Dave in Northridge, Darmok

    is that Windsor wins.  The decision will be a mess with the four liberals voting on Equal Protection grounds, and Kennedy coming in with the Federalism argument.  In any case, Section III of DOMA falls.

    In Perry, I suspect the Court will go the procuderal route (rather than a DIG) and will overturn the 9th, while leaving the District Court ruling in place.

    With the Decision Points Theater, the George W. Bush Presidential Library becomes the very first Presidential Library to feature a Fiction Section.

    by Its the Supreme Court Stupid on Wed Jun 12, 2013 at 12:31:08 PM PDT

  •  Thanks for this thorough explanation. (4+ / 0-)

    Waiting for these nine people to make decisions that will impact my life so much is unnerving, to say the least.

    Tyrion Lannister: "It's not easy being drunk all the time. Everyone would do it if it were easy."

    by psychodrew on Wed Jun 12, 2013 at 12:31:44 PM PDT

  •  Thanks so much for this! I understand! nt (2+ / 0-)
    Recommended by:
    Dave in Northridge, Darmok
  •  I predict a positive outcome, but the most limited (3+ / 0-)

    one the court can find on both issues.

  •  The 27th (3+ / 0-)

    I'd like to see the equal protection argument on DOMA but here the glass is half empty for me. I'd also like to see Prop 8 apply to at least the 9th Circuit states with civil unions, but again, half empty.

    I'm HOPING Kennedy is reminded of what he wrote in his Romer opinion about animus in whatever he writes about this. I don't really see Roberts writing the opinions.

    -7.75, -8.10; . . . Columbine, Tucson, Aurora, Sandy Hook, Boston (h/t Charles Pierce)

    by Dave in Northridge on Wed Jun 12, 2013 at 01:09:36 PM PDT

    •  The next battle will be over Section 2 (3+ / 0-)
      Recommended by:
      Mokurai, Darmok, Dave in Northridge

      of DOMA, assuming that Section 3 falls.  That is the section which permits states to deny full faith and credit to the marriages performed in other states.  The Constitutional basis for Congress having the power to do that is very sketchy to my mind.  It rests on a reading of the Full Faith and Credit Clause which is quite expansive and goes well beyond anything the Framers intended.  I can imagine Scalia's brain exploding when that comes up for argument.

      With the Decision Points Theater, the George W. Bush Presidential Library becomes the very first Presidential Library to feature a Fiction Section.

      by Its the Supreme Court Stupid on Wed Jun 12, 2013 at 01:17:05 PM PDT

      [ Parent ]

      •  States are already granted the sort of power (2+ / 0-)
        Recommended by:
        Darmok, Dave in Northridge

        under the public policy exception, which provides for states to refuse to recognize marriages legally contracted elsewhere...if I understand this one correctly it partially is a legacy of anti-miscegenation laws but also permits states to refuse to recognize first cousin marriages and those involving minors as such marriages are permitted in certain states but not others. The scope of Section 2 of DOMA is certainly far broader than this and seems like it would be fertile ground for future litigation.

        •  Although my understanding is that normally (0+ / 0-)

          the public policy exception has, at least in recent history, only been applied in cases of venue shopping where a couple who reside in one state that doesn't allow them to marry travel to another state that does, get married, and then return to their home state. I can't recall any cases where it was applied against a couple who were married in a state in which they legitimately resided (i.e. didn't merely establish temporary residency for the purpose of marriage) and then moved to another state with different requirements.

          Thus if a state doesn't allow first-cousin marriages and a pair of first cousins residing in that state travel to a state that does and marry there, their home state doesn't have to recognize their marriage. However, if a first-cousin couple who have lived all their lives in a state that allows first-cousin marriage get married there, then their marriage is, as far as I know, still recognized in states that wouldn't have issued them a marriage license if they applied for it.

          Similarly for age. A long time ago, Jack and Jill married each other when they were both 13 in a state where the age of marriageability was 12 at the time (we're talking early 20th century, when marriageability ages were a lot lower). In later decades, Jack becomes a multimillionaire. At 70, they retire to a state where, 57 years ago, the marriage age was 14 (though it had been raised to 16 since then). At 90, Jack dies. leaving everything to Jill. However, Jack's brother Bill, who also retired to the same state, contests Jack's will, arguing that since Jack and Jill were under 14 at the time they married, their marriage was never valid in their current state (note that sometime in the previous 20 years the marriage age was again raised, this time to 18) and that he's entitled to a substantial chunk of Jack's fortune.

          I doubt that too many courts would buy Bill's argument. There's enough variation in consanguinity restrictions, and used to be enough variation in age requirements, that a very large number of couples would be married in some states and unmarried in others if the public policy exemption were applied to marriages contracted in one's state of residence.

          Sometimes truth is spoken from privilege and falsehood is spoken to power. Good intentions aren't enough.

          by ebohlman on Thu Jun 13, 2013 at 12:26:37 PM PDT

          [ Parent ]

  •  You should put up a prediction poll (1+ / 0-)
    Recommended by:
    Lonely Liberal in PA

    What will the Supreme Court do on Prop 8?

    -Uphold it
    -Strike it down, but limit it's ruling to California
    -Strike it down, finding civil unions unconstitutional
    -Strike it down, finding all same-sex marriage bans unconstitutional
    -Decline to rule on the merits on procedural grounds

  •  The cases could be released tomorrow, right? (0+ / 0-)

    But most likely June 24 or June 27.

    I'm hoping for a Pride celebration like in 2003 when Lawrence was released, rather than 1986 with Bowers.  (A bizarre coincidence that the Supreme Court sits on big cases until the same week as Pride celebrations).

    •  If I were to bet, I'd bet on the 27th. But yes, (0+ / 0-)

      the cases could be released tomorrow.

      One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

      by AUBoy2007 on Wed Jun 12, 2013 at 03:08:07 PM PDT

      [ Parent ]

    •  The affirmative action case is the oldest (0+ / 0-)

      that has yet to be decided. It was argued back in October. The Voting Rights Act case was argued in late February. The marriage cases in late March.

      Opinions are issued when they're ready. My guess would be we're likely to see the affirmative action case decided tomorrow.

  •  DOMA isn't going to be struck on 14th Amendment (0+ / 0-)

    grounds, because the 14th Amendment doesn't apply to the federal government, only the states. Rather, it'd be struck down under the implied equal protection clause that the Supreme Court has read into the 5th Amendment.

  •  Gender Discrimination (0+ / 0-)

    Another way to back-end the issue without ruling on GLBT and scrutiny.  They could say, "A man can marry a woman, but not a man, that's GENDER discrimation."  Some obsessed court-watchers have suggested this as an end-run for Kennedy to get gay marriave without addressing the 14th.

    Minority rights should never be subject to majority vote.

    by lostboyjim on Thu Jun 13, 2013 at 09:10:07 AM PDT

  •  The diarist erred by including Wisconsin in the (0+ / 0-)

    list of states which have "marriage except for the name".   The domestic partnership registry here is definitely not remotely equivalent to civil unions or to marriage.

    •  Blame it on the Wikipedia map (1+ / 0-)
      Recommended by:

      It doesn't distinguish between civil union/strong domestic partnership and weak domestic partnership/reciprocal benefits. Wisconsin's currently the only US state that has the latter (though some municipalities also do); Colorado used to be the other one until they enacted full civil unions this year.

      Sometimes truth is spoken from privilege and falsehood is spoken to power. Good intentions aren't enough.

      by ebohlman on Sun Jun 16, 2013 at 01:56:33 PM PDT

      [ Parent ]

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