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Ellen K. BoegelMarch 12, 2014

On June 26, 2013, the U.S. Supreme Court decided two cases related to same-sex marriage, United States v. Windsor and Hollingsworth v. Perry. In Windsor, the court determined that the definition of marriage set forth in the federal Defense of Marriage Act violated the Fifth Amendment’s due process and equal protection clauses, not because the court declared a constitutional right to same-sex marriage, but because the federal law distinguished between same-sex married couples and heterosexual married couples when the states that issued their marriage licenses made no such distinction. The decision in Perry ends a lengthy and uniquely Californian legal case that went up, down and around all levels of the state and federal courts. The U.S. Supreme Court’s decision in this case also makes no substantive pronouncement on a constitutional right to same-sex marriage. It does, however, leave in place a federal trial court decision that held Proposition 8 unconstitutional and reinstated same-sex marriage in California. 

Those who contend the primacy of traditional heterosexual marriage is essential to the well being of society clearly were disheartened by these rulings (“Tragic Day for Marriage and Our Nation,” U.S. Conference of Catholic Bishops, June 26). While the Windsor decision grants significant federal benefits to couples in legally recognized same-sex marriages and, combined with the Proposition 8 decision, undoubtedly has increased the number of married same-sex couples in the United States, the long-term legal impact of these decisions remains to be seen. Two cases decided since Windsor and Perry indicate the legal battles regarding same-sex marriage are far from over. The five statements set forth here are offered as a guide to understanding the court’s recent decisions and the current state of marriage laws in the United States.

1. Marriage is a state law issue; the federal government is not empowered to issue marriage licenses.

The U.S. Constitution creates a federal system in which power is divided between the state and national governments. Article I, for example, enumerates the powers specifically granted to Congress, while the 10th Amendment grants residual powers to the states. The power to sanction marriages is not delegated to Congress, nor is it “necessary and proper” to an enumerated Congressional power. States exercise their authority to sanction marriages as part of their general police powers. Although DOMA defined marriage for federal purposes as “a legal union between one man and one woman,” it was not a federal marriage law. DOMA did not grant anyone the right to marry; it merely stated that the federal government would not acknowledge the legal status of same-sex couples who were married under state or foreign laws. Consequently, advocates on both sides of the marriage debate cannot look to Congress or the president to resolve the issue. The battleground is in the states and the courts. In Garden State Equality v. Dow, a New Jersey case decided after Windsor, a state trial court judge issued an order requiring New Jersey officials to permit same-sex couples to marry. The judge reasoned that because the New Jersey constitution requires different-sex and same-sex couples to be treated equally, the state must permit same-sex marriages so that same-sex couples will be capable of reaping federal benefits bestowed on married couples as a result of Windsor.

2. United States v. Windsor declared only part of DOMA unconstitutional.

Section 3 of DOMA, which specifically excluded same-sex marriages from federal recognition, has been declared unconstitutional and no longer may be applied by federal agencies. The federal government’s unequal treatment of state-sanctioned marriages was struck down, but no state is required to issue marriage licenses to same-sex couples or give legal recognition to same-sex marriages performed in other states. Windsor specifically left intact Section 2 of DOMA, which provides, “No State...shall be required to give effect to any [law] of any other State,...respecting a relationship between persons of the same sex that is treated as a marriage,” because it was not relevant to the case and had not been challenged by the parties. A month after Windsor was decided, however, a federal trial court judge in Ohio relied on Windsor and, while not specifically addressing Section 2 of DOMA, ruled preliminarily in favor of a same-sex couple who challenged Ohio’s statutory and constitutional provisions prohibiting the recognition of out-of-state same-sex marriages (Obergefell v. Kasich). Currently, 35 states have laws prohibiting their government’s recognition of out-of-state same-sex marriages. Constitutional challenges to these prohibitions are based, in part, on Article IV’s full faith and credit clause, the First Amendment’s right of association and the 14th Amendment’s privileges and immunities, due process and equal protection clauses.

3. Hollingsworth v. Perry, the case arising out of California’s Prop 8 ballot initiative, was decided by the U.S. Supreme Court on a procedural issue that leaves undisturbed a lower court ruling that declared a constitutional right to same-sex marriage.

The story of California’s same-sex marriage law is lengthy and convoluted. In short, the push for legal recognition of same-sex couples in California goes back at least to 1985, when a few cities implemented domestic partner registries. Proponents of equal rights for same-sex couples won various victories in the legislature by passing laws that eventually bestowed virtually all marital rights on domestic partners, but opponents of same-sex marriage won in California’s unusual popular vote ballot initiatives. In 2000, one such referendum passed and created California’s version of DOMA, a state statute providing, “Only marriage between a man and a woman is valid or recognized in California.” 

In May 2008, the California Supreme Court declared California’s DOMA statute in violation of the California Constitution’s equal protection clause. Opponents went to the ballot box again, but this time with a proposition amending the state Constitution. In November 2008, Proposition 8, which consisted of the same language previously declared unconstitutional—“Only marriage between a man and a woman is valid or recognized in California”—passed and became part of the California constitution. The case went back to the California courts, with the highest court deciding Proposition 8 was valid under state law. Not to be deterred, same-sex marriage advocates took the issue to the federal courts, claiming the U.S. Constitution protects what the California constitution does not, namely the right to a same-sex marriage. The federal trial court judge agreed.  

While the people of the State of California voted for Proposition 8, their elected officials did not support the constitutional amendment and refused to defend it in court. Once the federal trial court judge struck down Proposition 8, California officials were glad to acquiesce to the court’s ruling and did not file an appeal. Usually, when one party loses at trial and chooses not to appeal, the case is over; but in this situation the intermediate appellate court (for the Ninth Circuit), relying on an advisory opinion issued by the California Supreme Court, determined that the official proponents, California citizens who had initiated and voted for Proposition 8, were legally empowered to act on behalf of the state and bring an appeal in federal court. In legal parlance, the proponents had “standing,” a necessary element to satisfy the U.S. Constitution’s “case or controversy” jurisdictional requirement. The U.S. Supreme Court disagreed, ruling that neither the Ninth Circuit, nor it, the Supreme Court, could hear the appeal. Consequently, the trial court decision remains in effect, but it has no implications outside California.

4. The U.S. Supreme Court has not determined that same-sex couples have a constitutional right to marry.

As stated above, the U.S. Supreme Court did not rule on the trial court’s decision in Perry that the U.S. Constitution requires states to grant identical marital benefits to both different-sex and same-sex couples. The Windsor decision similarly does not reach the question of whether same-sex couples are entitled, under the U.S. Constitution, to state-issued marriage licenses. The court in Windsor merely held that when states issue marriage licenses, the federal government must honor those licenses equally for different-sex and same-sex couples. As was urged by the U.S. Conference of Catholic Bishops in its amicus curiae (friend of the court) brief in the Perry case, the court returned the battle for and against same-sex marriage to the states. The bishops’ brief said, “The Court should not foreclose varying judgments by the citizenry by forcing the issue into a constitutional Procrustean bed.”

Despite its desire not to intervene in state law concerning domestic relations, however, the Supreme Court eventually will be called upon to determine the constitutionality of a state’s refusal to issue marriage licenses to same-sex couples or a state’s refusal to recognize an out-of-state same-sex marriage.

5. The fate of same-sex marriage in the United States will be determined based on the U.S. Supreme Court’s understanding of due process and equal protection.

A Supreme Court decision based on the full faith and credit and privileges and immunities clauses determining whether states must honor marriage licenses granted to same-sex couples by other states will not finally settle the same-sex marriage issue. Same-sex marriage advocates will not be satisfied until the Supreme Court determines whether the U.S. Constitution grants same-sex couples a right to marry in every state. When that day comes, the court will analyze the relevant sections of the Fifth Amendment (“No person shall...be deprived of life, liberty, or property, without due process of law”) and the 14th Amendment (No state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”). These constitutional provisions were applied to strike down Virginia’s antimiscegenation laws. In Loving v. Virginia (1967), a unanimous Supreme Court held:

There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause. These statutes also deprive the Lovings of liberty without due process.... The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Laws that effect disparate treatment based on race are always suspect and, if they can be justified at all, must withstand the strictest scrutiny. No one knows what level of scrutiny, if any, the Supreme Court will apply to disparate treatment based on the sexes of a couple. In Baker v. Nelson (1972), the court did not decide, and thus let stand, a Minnesota Supreme Court ruling that held there is no constitutional right to same-sex marriage. In Romer v. Evans (1996), however, the court declared unconstitutional a Colorado law that prohibited all government protection of gays, lesbians and bisexuals. Justice Anthony Kennedy, who also wrote the majority opinion in Windsor, stated, “if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. [The Colorado law] fails, indeed defies, even this conventional inquiry.”

More recently, in 2008, the Supreme Court held unconstitutional a Texas sodomy statute that criminalized homosexual but not heterosexual conduct (Lawrence v. Texas, 2003). The court found a due process liberty right to engage in private sexual conduct and held Texas had no legitimate interest to interfere with that right. While Justice Kennedy, again writing for the majority, acknowledged the changing nature of constitutionally protected liberty interests, Justice Sandra Day O’Connor, in a concurring, and thus non-binding, opinion, recognized the distinction between protected sexual conduct and the right to marry. “That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”

While proponents of same-sex marriage celebrate the Windsor and Perry decisions, the battle over same-sex marriage continues. These decisions, with their 5-to-4 rulings and strongly worded dissenting opinions, indicate just how divided we are as a nation when it comes to who may utter those simple words, “I do.”

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