In 5-4 decisions in which Justice Kennedy, as considered likely, joined the Court's liberal wing to form a majority as against the Scalia-Thomas-Roberts-Alito rightwingers, the Supreme Court delivered its opinions in the two gay marriage cases before it this term. They are-Hollingsworth v Perry (rejecting an appeal of the lower court decision overturning California's Proposition 8, on technical jurisdictional grounds), and US v. Windsor (affirming the unconstitutionality of Section 3 of DOMA (the federal "defense of marriage act" ) that forbids the federal government from treating as married spouses for any federal law purposes those gay couples that are legally wed in their state jurisdictions).
The Windsor case was on appeal from the Second Circuit, which applied heightened scrutiny to find unconstitutional DOMA's denial of the marital exemption to a same-sex surviving spouse of a marriage that took place in Canada and was recognized in New York where the couple lived at the time of the spouse's death.
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. Slip op. at 14.
The jurisdictional issue in Windsor was not a hangup for the Court. As I had indicated in the BNA Webinar on the two cases prior to the decision, the US retained a sufficient stake in the matter--relying on INS v. Chadha, the Court found that the government's refusal to pay the tax refund, even after the Justice Department's decision not to defend such cases, provide an existing Article III "case or controversy" before the Second Circuit and before the Supreme Court.
The judgment orders the United States to pay money that it would not disburse but for the court’s order. The Government of the United States has a valid legal argument that it is injured even if the Executive disagrees with §3 of DOMA, which results in Windsor’s liability for the tax. Slip op. at 8.
There was merely a prudential hurdle to overcome, and here prudence argued for a decision, given the extensive amici briefings on both sides, including the House-leadership organization's briefing adverse to the Executive.
BLAG’s sharp adversarial presentation of the issues satisfies the prudential concerns that otherwise might counsel against hearing an appeal from a decisionwith which the principal parties agree. Were this Court to hold that prudential rules require it to dismiss the case, and, in consequence, that the Court of Appeals erred infailing to dismiss it as well, extensive litigation would ensue. The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA’s sweep involving over 1,000 federal statutes and amyriad of federal regulations.
The constitutional holding in Windsor is a narrow reading of the equal protection afforded by the Fifth Amendment's extension to the states. Writing for the Court and joined by Justices Kagan, Sotomayor, Breyer, and Ginsburg, Justice Kennedy recognized that states have historically been allowed to define marriage--subject to Congressional restraints as in Loving v. Virginia's rejection of miscegenation laws--and noted that DOMA intervened to take away a protected status provided by those states that had recognized gay marriage--this was both the Congressional purpose and the effect of the law. Because it creates two-classes of marriages within a state that recognizes one class of marriage, and forces couples to treat their relationship one way for state purposes and another for federal purposes, it violates the most basic principles of equal protection.
Today twelve states and the District of Columbia recognize same-sex marriage. This decision gives same-sex married couples in those states equal treatment under federal law with married couples.
Here the State’s decision to give this class of persons the right to marry conferred upon them a dignityand status of immense import. When the State used its historic and essential authority to define the maritalrelation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protectionof the class in their own community . ... What the State of New York treats as alike the federal law deems unlike by a law designed to injurethe same class the State seeks to protect.
This status is a far-reaching legal acknowledgment of the intimate relationship between two people, arelationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historicalroots of the institution of marriage and its evolving understanding of the meaning of equality.
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. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). 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.
The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.This raises a most serious question under the Constitution’s Fifth Amendment.
Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound.
Though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause ofthe Fifth Amendment.
This requiresthe Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. The liberty protected by the Fifth Amendment’s DueProcess Clause contains within it the prohibition against denying to any person the equal protection of the laws
But there is a huge problem looming because of the failure of many states to recognize same-sex marriages performed in other states even though they recognize all other marriages performed in those other states. Section 2 of DOMA--which allows states to refuse to recognize sister-state marriages--in flagrant violation of the normal rules of comity between states--was not at stake here and thus its repeal remains for future cases. This means that there will be considerable uncertainty --and much bigotry and discrimination against gay couples for some time as those states that have enacted discriminatory constitutional or statutory provisions against gays continue to deny marriage rights to gay married couples when they move into them, and perhaps prevent them from retaining custody of their children or being able to legally divorce their spouses or will estates to their spouses. These problems will be resolved, at least for now, under each states "conflict of laws" provisions, with the overlay of the state's constitutional prohibitions, where existing, on recognition of same-sex marriages. This will cause harmful suffering to gay couples, so one would expect that there will be litigation on this issue soon. The Court's opinion regarding the many problems that would be created by extended litigation over the legality of DOMA section 3, across 1000 federal laws, shows that factor weighed heavily in its prudential decision to consider the constitutionality of Section 3. Perhaps it failed to adequately consider what it would mean to fail to carry the point further to a repudiation of same-sex marriage bans under a full Equal Protection holding. After all, the Court, citing Loving v. Virginia, acknowledged that
State laws defining and regulating marriage, of course, must respect the constitutional rights of persons.
The result is that gay marriage is recognized in the 12 states and the District of Columbia that have official recognized gay marriage either through legislation or court action (and, under Hollingsworth v Perry, now also in California), and that couples married in those states can now file joint returns, inherit an estate from a spouse without paying any estate tax and otherwise enjoy the special privileges (or, in some cases, burdens) provided to married couples under federal tax law and all other federal laws.
Regretably, but as expected, the Court did not reach the question of whether state-law prohibitions of gay marriage violate the Equal Protection Clause. This will await another day with a proper case challenging a state ban on same-sex marriage, perhaps after a number of states reverse their current constitutional amendments discriminating against gays by treating the privileges of marriage under state law as available only to a man-woman couple. Perhaps the varied views of the right-wing--a dissent by Chief Justice Roberts, a dissent by Justice Scalia in which Justice Thomas joined (and Roberts in Part I), and a dissent by Alito in which Justice Thomas joined in Parts II and III--augers well for a gradual withering away of the "traditionalist" (and religious fundamentalist) views supporting a same-sex marriage ban.
Some celebration is in order, as indeed took place across the country today, regarding this additional step toward erasing the kinds of bigotry that have been a stain on the country's belief in liberty for all since its inception. See Joy, and Dismay, as the Supreme Court rules, New York Times (June 26, 2013) (slides).
But the country's religious right will undoubtedly try to minimize the freedoms for gay and lesbian citizens as much as possible in the course of the state-by-state battles to come over recognition of gay marriage. The right claims that this is a matter of religious freedom, but it is in actuality a matter of religious imperialism--an attempt by conservative Christians to hoist their church's definition of marriage onto the laws of the land for everyone in the country, no matter their own religious persuasion or lack thereof. The fundamentalist view that only men and women can marry should have no legal status. Let those churches whose hierarchies accept that ideological position adopt that position as their church policy, but let them not succeed in forcing others to accept their views about gay and lesbian citizens and what constitutes a family.
Ross Douthat's commentary in the Times discusses this religious issue. See Religious Liberty and the Gay Marriage Endgame, New York Times blogs (June 26, 2013). Douthat supports the idea that these kinds of rights should be developed on a state-by-state basis, as a social experiment. I must admit I find that approach disgusting. If we were to say today that segregation or slavery or anti-semitism could be incorporated in state laws on a state-by-state basis to allow the dissenting minority who wanted (and still want, in a dismaying number of cases) to treat African Americans or Jews as inferior citizens without too much community disruption, no one would accept it. Why is it that people who claim to be thinkers--like Ross Douthat and the four right-wing Justices of the Supreme Court--continue to act like treating gays and lesbians as inferior citizens with second-class privileges is okay?
Note that the idea, discussed by Douthat, that there is a "religious issue" and that churches will have to incorporate their schools differently to "protect" them is a result of the growing false understanding of the Constitution's guarantee of religious freedom, fostered by politicians too willing to kow-tow to religious hierarchies and a Supreme Court overladen with a strongly religious majority who have long failed to understand the Constitutional framework for what it is--a protection for individual practitioners, not for religious institutions. Neither churches nor their businesses nor their organizational charities (i.e., church-run schools, hospitals and similar subsidiary institutions) merit religious protection from anti-discrimination laws intended to protect individual rights to religious freedom: by definition, if the institution is given "freedom" to impose its ideologies on individuals, the individuals themselves have lost those freedoms. These are individual rights, not institutional or corporate rights. Thus, to protect the individual's right to freedom of religion, a religious institution should not be permitted to force an institutional employee--other than perhaps its management personnel who have supervisory rights to hire and fire and penalize employees and are the carriers of the religious dogma "torch"-- to practice the dogma of the institution on birth control, gay marriage, divorce, or any other aspect of the religious dogma.
I thus find the statement of Ben Domenech, editor of The Transom, who is quoted in Douthat's commentary, quite offensive--he says that states will need to "alter their laws accordingly to protect religious organizations, businesses, mosques and churches, and prevent community clashes as best possible." The Constitution doesn't protect "religious businesses" and cannot put avoiding community clashes above protecting the religious liberties (or nonreligious views) of all Americans.
Someday the Court will correct its error on this point, but one suspects that will be far in the future.
Too bad that the Supreme Court voted the other way on the Voting Rights Act--a decision that essentially disregarded both Congress's role under the Civil War amendments and Congress's 2006 analysis of the need for continued oversight, especially in the states currently within the coverage. Note that the law provided for states to be brought within the coverage or exempted from the coverage, so the Roberts Court's right-wing activist decision was an unjustified effort to find a way to favor Southern (and Republican) states. Scalia's dissent in the Windsor case--in which he argues that the Court owed respect to the legislative branch (see exceprt, below) stands in sharp contrast to the willingness of the Court to override Congress's renewal of the Voting Rights Act upon the basis of an extensive record of hearings and evidence as to continuing discrimination against minority voters in those Southern states, where poll places are moved to inconvenient locales and ID forms are required that may be difficult for minorities to obtain. In Windsor, Scalia claims that "democratically adopted legislation" like DOMA should be upheld by the Court, but in the Voting Rights Act case the majority ran roughshod over such legislation in a situation where Congress's role is mandated by the amendment itself.
We have no power to decide this case. And even if we did, we have no power under theConstitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America. J. Scalia dissent in Windsor, Slip Op. at 1.
While I disagree with Scalia's view expressed in his dissent that there was no standing in Windsor, I do think he makes some very good counterarguments to the arguments in Alito's dissenting opinion about jurisdiction, which would recognize the BLAG (purportedly a bipartisan house legislative group, but in the Windsor case, only 3 Republican leaders of the House authorizing a "defense" of Congress's actions in enacting DOMA) as a rightful adversary at the Court in a case such as Windsor. Scalia accurately sinks daggers into Alito's trumped up theories of Congressional prerogative to litigate against the Executive whenever it doesn't like the way the Executive carries out Congressional duties.