Two wins on marriage

Supreme Court strikes DOMA, lets pro-gay ruling stand on Prop. 8

by Anthony Glassman

Washington, D.C.--The Supreme Court ruled in favor of the LGBT community on June 26, in the two marriage equality-related cases it heard earlier this year.

The court held that the Defense of Marriage Act�s section that bars the federal government from recognizing any same-sex marriage is unconstitutional.

In the Proposition 8 case, the justices decided that the measure�s backers could not appeal the district court�s ruling when the state of California had refused to. They ordered the Ninth Circuit to dismiss the appeal, which would leave Judge Vaughn Walker�s ruling to restore marriage as the final one.

In the case on Prop. 8, Hollingsworth v. Perry, the California Supreme Court� had ruled in favor of marriage equality in May, 2008; couples started getting married, then voters passed a state constitutional amendment barring same-sex marriage later that year.

Judge Walker found Prop. 8 unconstitutional in 2010, and then-governor Arnold Schwarzenegger and attorney general Jerry Brown, who is now governor, refused to defend it in court, believing it unconstitutional. Both spoke out against Prop. 8 when it was before voters.

The people who put Prop. 8 forward kept fighting to be granted standing in lieu of the state government in defending the measure. They were granted it when the appellate court petitioned the California Supreme Court to rule on whether or not they could have standing in the case, and that court said yes. The Ninth Circuit Court of Appeals upheld Vaughn's ruling, and the anti-marriage forces were rejected when they requested a hearing before the full Ninth Circuit. After that, they appealed to the United States Supreme Court.

�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 Chief Justice John Roberts in the majority's ruling. �Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal.�

The ruling was 5-4, with Justices Anthony Kennedy, Clarence Thomas, Samuel Alito and Sonia Sotomayor dissenting.

The ruling made for strange bedfellows, with Sotomayor likely wanting to decide the case on the merits and probably voting in favor of same-sex marriage, while Chief Justice Roberts joined with the other, more liberal justices like Ruth Bader Ginsberg, Elena Kagan and Stephen Breyer, as well as arch-conservative Antonin Scalia.

With this ruling, the lower courts are free to lift injunctions keeping marriages from being performed in California.

The other ruling, however, will likely have more far-ranging effects.

In that case, United States v. Windsor, the court ruled against the Defense of Marriage Act's Section 3, which read, �In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or wife.�

The case revolves around the relationship between Edith Windsor and Thea Spyer, who met in 1963 and married in 2007 in Canada. New York, their home state, viewed Canadian-performed same-sex marriages as legally valid, even before passing marriage in 2011. Spyer died in 2009, leaving her estate to Windsor, who had to pay over $350,000 in estate taxes because the federal government did not view them as a legally married couple.

Along the course of her seeking a refund from the government, the Justice Department decided to cease defending DOMA in court, with both Pres. Barack Obama and Attorney General Eric Holder finding Section 3 unconstitutional. Rep. John Boehner of Cincinnati, the Speaker of the House, then used the House of Representatives Bipartisan Legal Advisory Group to continue the law's defense as it was struck down in court after court.

The court upheld BLAG's standing to defend DOMA, but ruled against DOMA itself. Kennedy wrote, �DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government... The Constitution's guarantee of equality 'must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot' justify disparate treatment of that group.�

�DOMA's unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages,� he continues. �This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.�

SCOTUSBlog, a Supreme Court-watching website, noted that it was significant that the court ruled against DOMA on the basis of federalism, which is generally considered a sacred cow by conservatives.

Kennedy's ruling points both to financial and social difficulties placed before same-sex couples by DOMA, noting that veterans' same-sex spouses cannot be buried with them in federal cemeteries, and �DOMA also brings financial harm to the children of same-sex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers' same-sex spouses. And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security.�

Continuing with an argument used by conservative supporters of same-sex marriage, like Sens. Rob Portman of Ohio, Mark Kirk of Illinois and Lisa Murkowski of Alaska, he writes, �DOMA divests married same-sex couples of the duties and responsibilities that are an essential part of married life and that they in most cases would be honored to accept were DOMA not in force. For instance, because it is expected that spouses will support each other as they pursue educational opportunities, federal law takes into consideration a spouse's income in calculating a student's federal financial aid eligibility.�

Justices Alito, Roberts, Scalia and Thomas dissented.

The DOMA ruling will not force states that bar same-sex marriage to allow them; a separate clause of DOMA that was not challenged upholds their ability to refuse to recognize same-sex marriage.

However, this ruling will likely have major effects on areas like taxation and immigration, as well as Social Security.

Currently, the federal government does not recognize same-sex marriages for the purposes of immigration, which causes binational couples to choose between their relationship and their country. Efforts to allow same-sex marriages to be used as the basis for permanent residency have been stifled in Congress.

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