June 26, 2013 was a seminal day for the same-sex marriage issue. The U.S. Supreme Court issued two opinions, one addressing a federal statute and one dealing with a California proposition. Though the Court did not rule on the broad question of whether same-sex couples have a constitutional right to marry, the implications of these rulings are extensive, and will have wide-ranging effects, even as some questions remain unanswered.
US v. Windsor
The Defense of Marriage Act (DOMA) is a federal law providing rules of construction for over 1,000 federal laws and the whole realm of federal regulations, to define "marriage" and "spouse" as excluding same-sex partners.
The Windsor case involves a sympathetic party in Edith Windsor, who was with her partner, Thea Spyer for over 40 years, was married in Canada, and her marriage was recognized by the State of New York. Upon the death of Ms. Spyer, Ms. Windsor was denied the benefit of a spousal deduction for federal estate taxes because section 3 of DOMA bars recognition by the IRS of Ms. Windsor as a "spouse" or to recognize that the couple was married. Ms. Windsor therefore paid $363,053 in federal taxes because the federal government did not recognize her as married.
The Second Circuit Court of Appeals determined that DOMA was subject to heightened scrutiny, and under that test, Section 3 of the law that defines marriage as between only a man and a woman, violates equal protection and was therefore struck down as unconstitutional. The Second Circuit's analysis was significant in many respects, not least of which was the application of heightened scrutiny to same-sex marriage, which was unprecedented.
1. The Ruling
The U.S. Supreme Court affirmed the Second Circuit's ruling and held that Section 3 of DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.
Justice Kennedy began with the premise that the definition and regulation of marriage has been treated as being within the authority and realm of the States, although the federal government can make determinations that bear on marital rights and privileges. In an in-depth discussion of federalist principles, Kennedy notably remarked that "state laws defining and regulating marriage, of course, must respect the constitutional rights of persons" and cited Loving v. Virginia (the case that struck down bans on interracial marriages).
But interestingly, and perhaps tellingly, it was not upon this basis that Kennedy relied in finding DOMA unconstitutional. Instead, he wrote that subject to certain guarantees such as that in Loving, marriages are the province of the state, and DOMA reaches too far.
"It is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance," wrote Kennedy.
Kennedy went on to reason that the State of New York took steps to protect a class, and DOMA then takes that protection away. "What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect." This results Kennedy concluded, in a violation of basic due process and equal protection principles.
"DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal."
Justice Kennedy found no legitimate purpose overcomes the purpose and effect that DOMA had on those persons whom New York had sought to protect. "By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."
2. The Implications
The Windsor holding has wide-reaching effects. As noted in the opinion, DOMA definition of marriage and spouse applied to over 1,000 laws and all federal regulations.
Some of the areas in which same-sex couples will now be able to seek benefits include: adoption, social security, benefits under the Family & Medical Leave Act, federal benefits, filing taxes jointly, estate tax deductions and benefits, health benefits, housing taxes, criminal laws, copyright, veteran's benefits, bankruptcy, family law, immigration, military spousal benefits, veteran's burial, and taxes on health benefits from private employers.
Interestingly, Justice Kennedy also noted that there will also be certain responsibilities that come with this change. His examples include: consideration of a same-sex spouse's income for federal financial aid, and government integrity rules.
Of note is that Kennedy did not analyze this case under Loving v. Virginia, which he recognized as one area where the federal government can affect the state regulation of marriage so as to protect the constitutional rights of persons. Whether it is because he decided the matter under federalist principles and thus did not reach that issue, or because of the procedural posture of the case, i.e. the State was the one providing the protection rather than depriving it, will be an interesting consideration for the future, if and when the court reaches a case in which a state has deprived a couple of the right to marry.
Kennedy also did not address two issues in the lower court's opinion: the level of scrutiny to be applied, and a forty year old case, Baker v. Nelson. In Baker, which was an appeal from a Minnesota Supreme Court decision finding no right to same-sex marriage, the U.S. Supreme Court issued a summary dismissal "for want of a substantial federal question." The Second Circuit found this statement to be not controlling, saying: "The question whether the federal government may constitutionally define marriage as it does in Section 3 of DOMA is sufficiently distinct from the question in Baker: whether same-sex marriage may be constitutionally restricted by the states." The Second Circuit also found that manifold changes to the Supreme Court's equal protection jurisprudence "constitute another reason why Baker does not foreclose our disposition of this case."
3. The Limits of the Holding
As stated previously, the case did not address the broad constitutional question, so the question of whether there is a constitutional right to same-sex marriage remains for another day.
The Windsor holding only applies to those marriages that are legal under the laws of the State. Thus, for same-sex couples who are in states whose laws do not recognize same-sex marriage, the holding of this case will not apply. It will be interesting to see what will happen if a couple gets married in a state that recognizes same-sex marriage but then moves to a state that does not recognize it. Another remaining question will be what happens to the paradigm that has now been created, with some people in certain states being able to seek federal benefits as a result of this ruling but some will not, if their state does not recognize their marriage? Does that not also set up a "subset of sanctioned marriages" and make them unequal? Are civil unions now inferior?
Hollingsworth v. Perry
This case arose out of the passing of Proposition 8 in 2008 in response to a CA Supreme Court ruling that made same-sex marriage legal. Proposition 8 amended the state constitution to eliminate the right of same-sex couples to marry.
The District Court declared Proposition 8 unconstitutional and enjoined the public officials named as defendants from enforcing the law. The Ninth Circuit Court of Appeal ultimately ruled that said amendment to the constitution violated the Equal Protection Clause of the 14th amendment, based on the facts before it. The Ninth Circuit's reasoning was limited however, and found the violation because "California had already extended to committed same-sex couples both the incidents of marriage and the official designation of 'marriage,' and Proposition 8's only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment's constitutionality on narrow grounds."
1. The U.S. Supreme Court's Ruling
The U.S. Supreme Court held that proponents of Proposition 8, who stepped in to defend it when the state declined to, did not have standing to appeal the District Court's order. Writing for the majority, Chief Justice Roberts held that the Proposition 8 proponents did not have a "particularized" interest sufficient to create a case or controversy under Article III, and had not suffered an injury in fact. Moreover, the court found compelling that the Proposition 8 proponents were not public officials, agents of the state, and importantly if they were allowed to proceed, there would be no checks on how they proceeded and no way to remove them.
"We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here", wrote Roberts.
2. The Implications
Because the proponents of Proposition 8 did not have standing to appeal the District's Court's Order, both the Ninth Circuit and the U.S. Supreme Court did not have jurisdiction to hear the case.
As such, the District Court's order, that Proposition 8 was unconstitutional and shall not be enforced, stands. This means that, in California, same-sex couples will be allowed to get married. However, because the Ninth Circuit issued a stay of the order while the matter was being heard, marriage cannot resume until the stay is lifted. Generally, that will occur 25 days after the high court's ruling. Governor Brown has instructed the California Department of Health to begin issuing marriage licenses as soon as the stay is lifted.
In conjunction with the Windsor holding, there will be a multitude of areas, as listed above, to which same-sex couples will be able to seek benefits.
Another implication of this case may be the effect that it has on the referendum process. As Justice Kennedy points out in his dissent, the Court found that although a proponent has the authority to appear in court and assert the State's interest in defending an enacted initiative when the public officials charged with that duty refuse to do so, under California, this right does not meet federal requirements for standing. 26 other states have this type of initiative or popular referendum system, according to the dissent, and this holding will therefore have an effect on those states as well.
3. The Limits of the Holding
The U.S. Supreme Court's holding was a limited one, and did not address the broad question of whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.
Because the Court only ruled on the standing issue, the holding did not address the merits of the case. It only affects California's same-sex marriages by essentially leaving intact the district court's ruling that Proposition 8 is unconstitutional and will not be enforced.
Thirteen states and the District of Columbia now authorize same-sex marriage. With the Windsor ruling, federal benefits will now be available to legally married same-sex couples in those states. This issue is one that affects many areas of the law, so it will be imperative to be familiar with the holdings of these cases, their implications, and what they leave open for another day.