Having addressed race conscious university admissions on
Monday and the Voting Rights Act on Tuesday last week (see previous posts here and here), Emma Long analyses the Supreme Court's decision made
on Wednesday June 26, the final day of its term, in the issue of same sex
marriage. The two cases raised
rather different issues and were treated quite differently by the Court:
United States v. Windsor
The Case
US v. Windsor involved a challenge to Section 3 of
the Defense of Marriage Act, enacted in 1996, which defines marriage as between
one man and one woman. Under the
law, same sex couples who are legally married under the laws of their state
were denied access to federal benefits and protections accorded to opposite sex
couples. The challenge was brought
by Edith Windsor who, upon the death of her wife, Thea Spyer, received a bill
for estate taxes totalling more than $360,000, a bill she would not have
received had she been married to a man.
DOMA opponents, including Bill Clinton who as president signed it into
law, argued the law discriminated against individuals on the basis of their
sexuality. Supporters of the law
worried about what the striking down of DOMA would mean for the nature of
families and the sanctity of marriage.
 |
| Edith Windsor outside the Supreme Court |
The Court
In another 5:4 decision, this written by Justice Anthony
Kennedy, the Court struck down Section 3 of DOMA. The majority did so on two grounds: the power of the states
and equal protection. States have
long-standing authority to pass laws which govern domestic relations, the Court
argued, and this includes the right to determine what does and does not
constitute “marriage” within their borders. DOMA trampled on that authority by seeking to impose a
federal definition of marriage in certain circumstances. This harm was compounded, the majority
argued, by the fact that DOMA violates the Fifth Amendment’s guarantee of equal
protection. Kennedy wrote: “When
New York adopted a law to permit same-sex marriage, it sought to eliminate
inequality; but DOMA frustrates that objective ... DOMA writes inequality into
the entire United States Code.” In
a series of emotive passages, Kennedy’s opinion argued that DOMA “impose[s]
inequality,” “demeans” same sex couples by determining their relationships as
“second-tier marriage,” “humiliates tens of thousands of children” of same sex
couples, and “imposes a disability on a class by refusing to acknowledge a
status the State finds to be dignified and proper.” The combination of the infringement of the power of the
state and the unequal treatment of same sex couples was, for five Justices,
sufficient to strike down Section 3 of DOMA as unconstitutional.
Three dissents were filed by the four Justices in the
minority. Three Justices (Chief
Justice Roberts and Justices Scalia and Thomas) argued that the Court did not
even have the right to hear the case.
Because the Obama Administration had refused to defend the law, they
argued, and because Windsor had won her case in the lower courts, there was no
“controversy” here to be decided.
Deciding the case was, therefore, a major expansion of the power of the
Court that was not justified by any provision of the Constitution. Coming from Justices on the Court’s
conservative wing, from whom expansion of power claims are frequent, this was
not surprising. However, coming
the day after the Court’s decision in Shelby
County v. Holder (striking down key provisions of the Voting Rights Act),
in which Justice Ginsburg for the Court’s liberals accused the majority of
extending the Court’s power by denying the will of Congress, Windsor shows that such arguments can be
made by both sides when necessary.
On the substantive issues raised by the case the dissenters
agreed: the Constitution does not speak to the issue of marriage and therefore
can neither support or undermine the right to same sex marriage. Because the Constitution is silent,
properly elected legislative majorities may decide either for or against. Congress chose to support opposite sex
marriage in DOMA which, the dissenters argued, was perfectly legitimate under
the Constitution. For Justice
Alito, asking the Court to protect same sex marriage was asking it to protect
“a very new right,” one where the consequences have yet to be seen (and thus,
implicitly, viewing same sex marriage as somehow different from opposite sex
marriage). Justice Scalia employed
sharp and pointed language to argue both that the government may “enforce
traditional moral and sexual” norms and that, contrary to the majority’s claims
of discrimination, there are “many perfectly valid – indeed, downright boring –
justifying rationales for this legislation”.
Hollingsworth v. Perry
 |
| Gay rights activists outside the Supreme Court |
The Case
Hollingsworth v. Perry came from a challenge to a
California initiative, Proposition 8, which banned same sex marriage in the
state. Prop.8 was passed, by
public vote, in response to a California Supreme Court decision which held that
limiting marriage to opposite sex couples violated the state constitution (thus
opening the way for same sex marriage in the state). As the case made its way through the lower courts, however,
the state government refused to defend the law. In order to bring a case in court there must be a live
controversy: without anyone to defend Prop.8 there was the chance that the case
would be dropped. Individuals who
had been instrumental in the campaign for Prop.8 intervened in order to defend
the law. As argued before the US
Supreme Court in March there were thus two issues for consideration: the
broader issue of whether California, having once permitted same sex marriage,
could then remove that right, and the narrower, technical issue of whether
Prop.8’s supporters even had the right to defend it in court (a requirement
known in legal terms as “standing”).
The outcome of the case had the potential for far broader consequences
than US v. Windsor: some commentators had hoped that the Court might use
this case to strike down all restrictions on same sex marriage. Given the Court’s precedents this was
undoubtedly overly optimistic thinking, but there was a chance that the Court
would at least decide the status of same sex marriage in California which might
then open up possibilities in other states.
The Court
In the end, the Court ducked the broader issue in favour of
deciding the case on the narrow, technical grounds. The proponents of Prop.8 had no standing to bring their
challenge, according to the 5:4 majority; if the state chooses not to defend a
law, private parties cannot simply stand in its stead. As a result, the appeals to both the
lower court of appeals and the Supreme Court were held invalid and the case was
returned to the lower courts.
 |
| Sandy Stier and Kris Perry wave after they were married at San Francisco city hall. |
The Significance
The practical implications of both Windsor and Hollingsworth
are significant but, in some ways, rather limited. With the demise of Section 3 of DOMA, same sex couples whose
marriages are recognised in their home states will now be eligible for the same
federal benefits and protections as opposite sex couples. For those involved the financial and
security impact may well be significant (as, for example, the first granting of
a permanent residency visa to the Bulgarian husband of a Florida man on Friday
afternoon or Edith Windsor receiving a refund of the estate tax she paid). As a matter of law, however, the impact
is less major, applying only to the 1000 or so federal laws governed by DOMA.
And despite Justice Scalia’s warnings in dissent in Windsor that this case will ultimately
lead to a broad requirement that all states permit same sex marriage, the
majority stated this was not the case, holding the ruling applied only to those
states which already permit same sex
marriage. The Court’s decision did
not challenge Section 2 of DOMA which gives states the right to refuse to
recognise same sex marriages performed in other states and clearly made no
explicit statement about whether states should
permit same sex marriage under their own laws. Thus, couples who marry in one state and then move to
another may still run into difficulties under this rationale.
This is reinforced by the Court’s handling of Hollingsworth. Many had urged the Court to use the case to require states
to recognise same sex marriage, or at least to make a strong statement in its
favour. Deciding the case on
narrow, technical grounds, without addressing the substantive issues, implies
that the Court has gone as far as it is currently prepared to with its ruling
on DOMA. In effect, both Windsor and Hollingsworth ensure that, for now, the issue of same sex marriage
remains a debate to be had at state level.
If subsequent events in California are anything to go by,
those debates will continue apace.
Following the Court’s ruling on Wednesday, the Ninth Circuit lifted the
ban on same sex marriage on Friday.
Several couples, including those involved in Hollingsworth, married Friday afternoon. On Saturday Prop.8 proponents appealed to the Supreme Court
to ban such marriages until at least the deadline for appeals to Court rulings
had passed. On Sunday Justice
Kennedy refused that appeal, meaning same sex marriage remains, at least for
now, legal in California.
But the impact of these cases goes well beyond the narrow
legal principles established. As
the majority and dissenters in Windsor
noted, same sex marriage is an issue of much current debate and the astonishing
growth in public support for same sex marriage in the US will ensure that
continues. But now it will
continue with at least one Supreme Court precedent that, in its language, makes
some very strong statements about the value and validity of same sex marriage. This in a nation where state laws
making it a “crime for two persons of the same
sex to engage in certain intimate sexual conduct” were only struck down in 2003
(notably enough, exactly ten years to the day before Windsor and in an opinion also written by Justice Kennedy – see Lawrence v. Texas). And where, as recently as 1986, the
Supreme Court could characterise a challenge to one such law as a claim to a “constitutional
right of homosexuals to engage in acts of sodomy” (Bowers v. Hardwick). In this light, the Court’s decisions in Windsor and Hollingsworth
are quite remarkable and speak volumes about the impact of the campaign for gay
rights in the United States. The
debates will continue, but in the push forward it is worth taking a moment to
consider just how far things have already changed.
