The end of DOMAPosted: June 29, 2013
This week the Supreme Court ruled on the two same-sex marriage cases, Hollingsworth v. Perry and Windsor v. United States.
Hollingsworth v. Perry
The issue in Perry was that a group of private citizens wanted to step into the shoes of the state and defend the legality of Proposition 8 under the California constitution.
The Court had to decide at the outset was whether this group could step into the shoes of the state to pursue the claim. They ruled that the group had no right to do that.
The way the court split here was interesting. Kennedy and Sotomayor both dissented, along with Thomas and Alito. These four Justices would have heard the case on the merits. I predict that the subsequent decision on the merits would have fallen out exactly the same way as the decision in Windsor given that pretty much the same issues are at stake, but the world will never know.
The big argument against granting standing is that the right to sue only belongs to the state, and private individuals or groups can’t step in where the state has declined.
The dissent was focused around the way the California initiative system is set up, because the whole point of that system is to give voters more control over the way their state is run. This is a reasonable thing to discuss, but more direct voter control over the legislative process doesn’t necessarily mean that individual voters should have the power to step in for the state in court. Maybe if Californians pass a proposition that allows them to do that, a different outcome would be warranted in a future case.
And that’s that for Perry. I have never liked this case. The original filing seemed sloppy, and I have long been concerned that issues with the filing could have far-reaching consequences if handled poorly before the Supreme Court. I am also happy to have the standing issue cleared up, because the tyranny of the majority is one of the things our justice system is supposed to be a check on.
Windsor v. United States
This is the more direct challenge to DOMA, the Clinton-era carve-out to the Full Faith and Credit Clause passed in the 1990s in response to the first challenges to laws preventing same-sex couples from marrying. Clinton followed this particular gem up by running ads on conservative talk radio about how he was the candidate who stood up to the homosexual lobby. But hey, Reagan was happy to let us all die of AIDS, so I guess it was a step up?
Back to the analysis.
In Windsor, the issue is focused around estate tax. Ms. Windsor and her partner, New York residents, married in Canada. New York at that time recognized same-sex marriages performed in other jurisdictions. The federal government did not. When Ms. Windsor’s partner died, she left Ms. Windsor a significant chunk of cash. Since the federal government did not recognize their marriage, the IRS came calling and demanded their money. I’m not looking at the figures, but from my recollection of tax class and two seconds of research on Wikipedia my guess is she inherited more than $750,000 and probably more than $1,000,000.
This case makes clear that marriage rights are focused around property issues, and that the people who will benefit the most from marriage are people who already have money and property. It is true that Ms. Windsor’s marriage was treated differently because she and her partner were a same-sex couple. It’s also true that this is a shit-ton of money and my sympathy for rich people who don’t want to pay taxes is close to nil. But, all rich people should be treated the same without regard to sexual orientation.
The holding in Windsor is based on Fifth Amendment violations of due process and equal protection. Fifth, not Fourteenth, because this is a case about the action of the federal government, not a state government. The essence of the argument is that Ms. Windsor is being treated differently from someone with an opposite-sex spouse in a way that is costing her money and that’s not fair to her or to other people who are similarly situated. The holding also asserts that there is no reason for DOMA to exist other than to hurt same-sex couples, and that normally everyone just goes with state definitions of marriage. Including states where you can marry your cousin or a minor, neither of which have been banned from recognition at a federal level.
Kennedy’s majority opinion is quite sensitive to the extent of the damage that a law set up to discriminate can do and spends some time talking about the negative impact on children of having their government place a lower value on their family. Kennedy has been the author of a number of other significant gay rights decisions, including Lawrence v. Texas, which stated that consensual sexual behavior between adults cannot be criminalized (adopting former Justice Stevens’ dissent in Bowers v. Hardwick), and Romer v. Evans, which stated that a right to discriminate cannot be enshrined in the law. I think the holding in Windsor v. United States is the logical extension of these two decisions – consenting adults can have whatever relationships they want, and the law cannot be written to treat them differently. This is a very basic construction of rights as belonging to anyone who could possibly be eligible for them, because this isn’t some kind of Animal Farm society where some citizens are more equal than others.
Scalia seems to agree with me that this decision is the logical outcome of Lawrence and Romer, but he’s not happy about it. Scalia constructs rights as existing within a hierarchical system to reward whatever the valued behavior is – here it’s being able to present the appearance of “traditional sexual morality”, but he also doesn’t like when women can make decisions about our bodies. Overall this is the same issue: people controlling their own sexuality and making decisions he doesn’t approve of. Scalia believes there is a rational basis for laws of this kind, and that since gender-based discrimination and discrimination based on sexual orientation are not subject to a higher standard of review the law should stay in place.
(Note: generally laws that treat men and women differently get intermediate scrutiny, but Scalia doesn’t agree with that either.)
Roberts’ dissent is basically “quit calling us haters, we’re not haters” and then gets into how it’s okay to pass laws like this for uniformity and stability, and that the real question is whether this is an okay way for the federal government to handle that different states do things differently.
What the two cases have in common
The holdings in both cases are primarily about the states’ rights to define marriage, and whether the federal government’s interference with that right via DOMA is unconstitutional.
What happens next?
Traditionally marriages are afforded full faith and credit and treated in accordance with the law of the place of the celebration. So if you marry your 14 year old cousin in a state that allows that, and then you move to a state that doesn’t allow that, the state you move to will still recognize your marriage. Here the federal government recognizes all same-sex marriages, but state governments may not. This is going to create some interesting conflicts, by which I mean things are still going to be shitty for a lot of us. I think it’s likely that we’ll see challenges to state laws and constitutions banning same-sex marriage over the next few years.