High Court Guts DOMA and Proposition 8

Thursday, June 26, 2013

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High Court Guts DOMA and Proposition 8

From Staff and Wire Service Reports

In a historic day for gay rights, the Supreme Court gave the nation’s legally married gay couples equal federal footing with all other married Americans yesterday and also cleared the way for same-sex marriages to resume in California.

In a pair of 5-4 decisions, with different alignments, the court stopped short of a sweeping ruling that would have enabled same-sex couples to marry throughout the United States. But Justice Anthony Kennedy, writing for the court in United States v. Windsor, said an act of Congress that prevents those couples that have married from enjoying the benefits of marriage under federal law violates fundamental constitutional principles.

At issue was Sec. 3 of the Defense of Marriage Act, which was signed into law by then-President Bill Clinton in 1996. Clinton has since taken the position that the law is unconstitutional, signed onto an amicus brief urging the court to strike it down, and issued a statement yesterday praising the decision.

The high court ruled in favor of Edith Windsor, a New York resident who was hit with an estate tax bill of more than $300,000 following the death of her partner of 50 years. The couple had married in Toronto in 2007, before same-sex marriage was recognized in New York.

‘Second-Tier Marriage’

Kennedy said Sec. 3 was unconstitutional because it creates a form of “second-tier marriage” that confers benefits under state law, while treating those marriages as if they did not exist insofar as more than 1,000 federal laws and regulations are concerned.

“The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute,” he wrote. “It was its essence.”

Kennedy continued:

“By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.”

Kennedy wrote on the 10th anniversary of his opinion in Lawrence v. Texas, 539 U. S. 558 (2003), which held that laws criminalizing consensual sex between adults of the same gender violate constitutional privacy rights. He cited that ruling yesterday, saying that states that have legalized same-sex marriage have recognized that those couples are entitled to the same “dignity” as other married couples.

“The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion.”

He was joined by Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.

Scalia Dissents Again

Justice Antonin Scalia, who predicted in his Lawrence dissent that the ruling would lead to same-sex marriage, dissented in Windsor and made a new prediction that the ruling would be used to upend state restrictions on marriage. Scalia read aloud in a packed courtroom that included the two couples who sued for the right to marry in California.

On the bench, Kagan watched Scalia impassively as he read:

“It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’ hateful moral judgment against it. I promise you this: The only thing that will ‘confine’ the court’s holding is its sense of what it can get away with”

Scalia and Justice Samuel Alito, who also wrote a dissenting opinion, said their view is that the Constitution does not require states to allow gay and lesbian couples to marry. Chief Justice John Roberts dissented separately, saying Sec. 3 is constitutional but that he was not prejudging the constitutionality of state same-sex marriage bans.

Proposition 8 Case

In the Proposition 8 case, Hollingsworth v. Perry, the court took a limited course of action. It said the Ninth U.S. Circuit Court of Appeals, which affirmed the order of since-retired U.S. District Judge Vaughn Walker of the Northern District of California that the measure was unconstitutional because it deprived California couples of rights that the state had previously recognized by adopting domestic partner legislation, should not have heard an appeal by the proponents of the ballot measure.

—AP

Edith Windsor, the plaintiff in the historic gay marriage case that was before the U.S. Supreme Court, reacts during a news conference at the LGBT Center, in New York yesterday.

The proponents were allowed to intervene in order to defend the measure after then-Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown would not do so. But Roberts, joined by Breyer, Ginsburg, Kagan, and Scalia, said the proponents had no right to appeal after Brown, who succeeded Schwarzenegger, and Kamala Harris, who succeeded Brown, refused to do so.

The proponents “had no ‘direct stake’ in the outcome of their appeal,” the chief justice wrote. “Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law. We have repeatedly held that such a ‘generalized grievance,’ no matter how sincere, is insufficient to confer standing.”

About 18,000 California couples married between the state Supreme Court’s ruling in In re Marriage Cases (2008) 43 Cal.4th 757, holding that the limitation of marriage to same-sex couples violated the right to equal protection under the California Constitution, and the enactment of Proposition 8 in November 2008. The state continues to recognize the validity of those unions under Strauss v. Horton, a 2009 ruling that upheld Proposition 8 but said it did not apply retroactively.

It was not immediately clear when same-sex marriages will resume in the state.

Proponents have 25 days to ask the Supreme Court to reconsider its decision. The Ninth Circuit also must lift its stay of Walker’s order.

Still, state officials moved quickly to signal their approval. Brown said he had directed the California Department of Public Health to start issuing licenses to gay couples as soon as the Ninth Circuit lifts the stay.

Harris went even further, publicly urging the appellate court to act ahead of the final word from the Supreme Court. “I’m absolutely saying that if the 9th Circuit lifts its stay before the 25 days, that marriages can resume in California, and shall resume in California,” Harris said.

Without offering any specifics about their next move, lawyers for Proposition 8 sponsors insisted the attorney general and governor remained obligated by the California Constitution to enforce Proposition 8 and that Wednesday’s ruling only legalized marriage for the two couples who sued to overturn the ban.

“Everyone understands that our opponents did not file this lawsuit to prove or demonstrate we did not have standing,” said Austin Nimiocks, senior counsel for the Alliance Defending Freedom. “What was sought in this lawsuit was a 50-state mandate or to establish there is a fundamental right to same-sex marriage, which the Supreme Court did not rule today.”

California would be the 13th state, along with the District of Columbia, to allow same-sex couples to marry and would raise the share of the U.S. population in gay marriage states to 30 percent. Six states have adopted same-sex marriage in the past year, amid a rapid evolution in public opinion that now shows majority support for the right to marry in most polls.

The 12 other states are Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington.

The day’s rulings are clear for people who were married and live in states that allow same-sex marriage. They now are eligible for federal benefits. The picture is more complicated for same-sex couples who traveled to other states to marry but now live in states that still do not recognize same-sex marriage.

Including California, about 30 percent of Americans will be living in states where same-sex marriage is legal.