The U.S. Supreme Court decisions on marriage rights—striking down part of the Defense of Marriage Act, and clearing the way for same-sex marriage to resume in California—felt like the culmination of a movement. But they were also the beginning of a new era for civil marriage, and new questions for law and governance. In advance of “What’s Next for Marriage Rights?” a Zócalo/UCLA Williams Institute event, we asked experts in the law and marriage: What is the biggest unresolved legal question after the U.S. Supreme Court marriage decisions?
The biggest unresolved legal question is straightforward: how long it will take for full marriage equality to become a reality across the country. Note that the question is not “whether” but, instead, “when.”
How can I be so confident when more than two-thirds of our nation’s states currently exclude same-sex couples from marriage, some via discrimination enshrined in their Constitutions? After all, when the Supreme Court invalidated the Defense of Marriage Act (DOMA), which prohibited the federal government from recognizing same-sex couples’ marriages, it did not directly address marriage discrimination by the states.
There are two reasons for my confidence in a future of marriage equality. First, the law. A careful reading of the high court’s decision in Windsor v. United States (the name of the case that invalidated DOMA) shows that the Court has little patience for the harm caused by reserving marriage to opposite-sex couples. As Justice Kennedy wrote, DOMA’s prohibition “demeans” same-sex couples and “humiliates tens of thousands of children now being raised by same-sex couples.”
Despite the facts that DOMA was a federal law and that the next legal challenges will arise against state laws that keep same-sex couples out of marriage, the Court’s reasoning ought to carry over. There is no reason that state-sponsored discrimination is any less demeaning, humiliating, or harmful than discrimination by the U.S. government. In fact, it is states’ refusals to recognize same-sex couples’ marriages that often produce the saddest, most tragic results—as when spouses are treated as legal strangers in hospital emergency rooms or situations where end-of-life decision-making is necessary.
The second reason that marriage discrimination against same-sex couples will come to an end—hopefully soon—is public opinion. Polls show majorities endorsing marriage equality. Most Americans want religious institutions to remain free to pick and choose among the couples they marry. But most Americans also believe—and strongly—that marriage discrimination by the states has no place within America’s promise of equality for all.
The Supreme Court’s muddled decision in Windsor v. United States recognizes the dignity of same-sex relationships, but it leaves unresolved how this dignity fits with the equal dignity of states, which was recognized in the decision striking down a part of the Voting Rights Act. Only Justice Kennedy joined the majority opinion in both cases. There is a tension between these cases, as well as within Windsor itself, about whether state laws prohibiting same-sex marriage are constitutional.
The Court in Windsor provides a grab bag of legal rationales for its ultimate decision to strike down part of the Defense of Marriage Act. The Court reaffirms the traditional role of the states in defining marriage and also requires federal recognition of same-sex marriages. But the actual constitutional protection in the Windsor case is a peculiar one—to be clear, the decision does not create an individual right to same-sex marriage. Rather the Court finds a constitutional right to federal recognition for such marriages because of the dignity of those relationships.
In other civil rights cases, the Court has referred to dignity, but always in the context of identifying a constitutional right, such as the freedom to marry across racial lines in Loving v. Virginia. The harm to dignity in those cases was a consequence of inequality, not the inequality itself. In Windsor, the harm to dignity is the constitutional harm.
The Supreme Court has never before upheld a right to dignity unconnected to an underlying individual right. One of the difficulties of this right to federal recognition is that the equal dignity for same-sex marriage cannot easily coexist with the equal dignity for states. In other words, if the Constitution requires the federal government to recognize same-sex marriages, can state laws prohibiting same-sex marriage be constitutional? The breadth of the Windsor opinion suggests it is likely just a way station to a constitutional right to same-sex marriage. Yet in a future case, the Court could allow states to define marriage through their political processes. The Court will inevitably decide this conflict of dignities when faced with a challenge to one of the many state laws that exclude same-sex marriage.
The biggest unresolved legal question for same sex marriage is NOT what many marriage equality advocates and so much of the media started bemoaning within hours of the Supreme Court striking down Section 3 of the Defense of Marriage Act. We are now being told again and again of the terrible problems with the new patchwork map of marriage recognition that we are left with since the federal government has gotten out of the business of defining marital status for itself. The media asked: What of the same sex couple that gets married in Iowa and moves to Oklahoma? We may not know immediately whether the federal government will honor their marital status. Horrors! Such confusion! Such inconsistency! What a legal mess?
Hardly. This legal mess is, after all, just what the plaintiffs in Windsor, who were on the winning side, asked for. As of Tuesday, June 25, the day before the Supreme Court issued its rulings, uniformity and consistency were the arguments used by the defenders of DOMA. It was the need for uniform federal treatment of same sex marriage that explained why Congress acted rationally and sensibly in drafting DOMA, argued what turned out to be the losing side.
But the court said uniformity was not necessary. DOMA’s imposition of federal uniformity was too big a departure from traditional federal deference to state determinations of marriage, too much of a burden on one particular class of married people (same-sex couples), and too much of an interference with the important institution of marriage. Yet by Thursday, June 27, uniformity and consistency had become the arguments for the other side, supporters of a federal constitutional right to same-sex marriage.
Progressive forces fighting the next battle, for a federal constitutional right to marry, are now arguing that uniformity is essential. But that is only because progressive forces now feel comfortable that the law is trending in their direction. Uniformity is only worth fighting for if one likes the law that will become uniform. From 1996 until, quite possibly, November 2012 (when same sex marriage ballot initiatives first began to prevail over conservative efforts to define marriage as between a man and a woman), uniformity was the last thing progressive forces wanted.
And what happens until we get the uniformity that progressives now yearn for? Nothing all that difficult. As the plaintiffs in Windsor argued, it is simply not that hard to figure out what the law will be in this period of non-uniformity. Federal courts and federal agencies will decide whether it is the law of domicile (where the couple lives, Oklahoma in the above example) or the law of the place of celebration (where the couple was married, Iowa in the above example) that will determine federal marital status in any given instance. Federal courts and federal agencies have been making such rules for over a hundred years for those marriages that different states have treated differently, common law marriages, underage marriages, interracial marriages (until the Supreme Court decided Loving v. Virginia in 1967). I have little doubt that eventually the Supreme Court will find that those outlier states that refuse to recognize marriages between couples of the same sex are violating federal constitutional law. But until those states actually become outliers, while we still have significant disagreement between the states, the vast majority of which still disapprove of same sex marriage, there are worse things than a lack of uniformity.
What level of scrutiny should laws that classify people by sexual orientation be subject to?
In his majority opinion in Windsor v. United States, Justice Kennedy invoked constitutional principles of equality to find in favor of same-sex couples. But, as the dissenting justices pointed out, the majority did not subject DOMA’s sexual orientation-based classification to heightened constitutional scrutiny. In fact, Kennedy did little to specify exactly what type of scrutiny he applied.
And there was a very live controversy over how sexual orientated-based laws should be judged. The U.S. Department of Justice had forcefully argued that, like laws that discriminate based on gender, those that classify based on sexual orientation should receive “intermediate” scrutiny under the federal Equal Protection Clause. In Hollingsworth v. Perry, the case involving California’s Proposition 8, the attorneys for the plaintiffs—same-sex couples who wanted to marry—had argued for some form of heightened scrutiny. At the federal district court in Perry, Judge Walker had found that sexual orientation had all the markers of a “suspect” classification and thus merited strict constitutional review. Yet the Supreme Court didn’t resolve this conflict over the level of scrutiny; instead, it decided Perry on the question of standing and disposed of Section 3 of DOMA without invoking heightened review.
Why does this matter? A ruling that sexual orientation-based classifications deserve heightened scrutiny under the federal Equal Protection Clause would have immediately cast suspicion on the many other laws that discriminate against lesbian, gay, and bisexual people across the country. Laws restricting adoption and parental rights would begin to crumble. Discrimination against government employees would be curbed. And state bans on same-sex marriage would soon fall.
Nonetheless, side-stepping the level-of-scrutiny question may make sense from an institutional perspective. Kennedy’s reasoning in Windsor provides all of the arguments necessary to strike down state prohibitions on same-sex marriage—and other hostile laws—without saying so directly. By avoiding heightened scrutiny, the Court leaves till another day the looming questions over the constitutionality of state marriage laws and other discriminatory laws. The Justices may be hoping that, with their significant but measured intervention, the nation will continue to move toward sexual orientation equality on its own.
Can states still define marriage traditionally, or will the courts redefine it nationally?
The big question remaining after the U.S. Supreme Court’s marriage decision is whether citizens of the states may recognize an institution, marriage, whose purpose is to promote children’s entitlement to a united mother and father. In striking down the portion of the Defense of Marriage Act that retained the definition of marriage as the union of a husband and wife for federal law purposes, the court majority had to redefine marriage from a union of social significance to a government-created legal status meant to lend dignity to a private relationship. That is a significant shift.
The majority appeared to impute bias to lawmakers solely because they recognize the reality of sexual difference and of marriage’s connection to children. The Court did stop short of mandating a redefinition of marriage on all the states, though, so the question of whether the states can recognize these realities in their laws is still open. On the one hand, the opinion said the states should be free to do so. On the other, the casual defamation of critics of redefinition in the opinion creates arguments that will no doubt be pressed by litigants who would like the federal courts to micromanage the marriage policies of the states.
With its decision, the Windsor majority appears to embrace a conception of judges as super-legislators, disrupting social norms that seem at odds with extra-constitutional principles like “equal dignity.” We will see whether that role will be recklessly embraced or wisely repudiated by the rest of the judiciary.
The most significant legal question left unanswered in the wake of the landmark marriage cases is the fate of those same-sex couples who marry in one of the 13 states (and Washington, D.C.) that allow civil same-sex marriage and then relocate to another state that does not recognize those marriages or bans them altogether.
As Adam Liptak of The New York Times pointed out, Justice Scalia, in his dissent to the Windsor decision invalidating part of the Defense of Marriage Act, argued that the interstate recognition (or non-recognition) question will be a vexing one. Justice Scalia posited that “DOMA avoid[ed] difficult choice-of-law issues that will now arise absent a uniform federal definition of marriage.”
“Imagine,” Justice Scalia wrote, “a pair of women who marry in Albany and then move to Alabama” – i.e., from a state (New York) where they formed a legal civil marriage to a state (Alabama) that banned such marriages by a constitutional ballot measure in 2006 entitled the “Sanctity of Marriage Amendment,” which defined civil marriage as “a sacred covenant, solemnized between a man and a woman” and declared as “having no legal force or effect” any same-sex marriages performed in Alabama “or in any other jurisdiction.”
President Obama addressed this issue directly by insisting that “…if you marry someone in Massachusetts and you move somewhere else, you’re still married.” But he qualified his comment in a way that acknowledged the legal complexities of the matter, conceding that he was “speaking…as a president [and] not as a lawyer.” While difficult, these legal tangles will have to be unraveled, and most likely in a manner favorable to same-sex married couples. Allowing states to discriminate against same-sex couples married elsewhere, and recognized as legally married by the federal government, is a scenario that is fundamentally unfair, unconstitutional under the overarching reasoning in the Windsor majority, and therefore unsustainable.
Another legal challenge, perhaps just as significant as the lack of uniformity among states, is that of the practical implementation of the Windsor decision across the federal government and its many agencies charged with administering the over 1100 Federal statutory and regulatory rights conferred to civilly married couples. Questions involving federal tax and Social Security retirement benefits and filings, pensions, immigration, Federal and private employment benefits, coverage of same-sex spouses in health insurance plans, and the treatment of same-sex spouses in the armed services comprise just a sampling.
Many regulatory changes necessitated by Windsor are already underway, but some amendments may require major regulatory and even statutory overhauls. The Washington Post’s Peter Wallsten, who has written about this monumental challenge, reports that gay rights activists have asked the President to issue a blanket order to effectuate the necessary changes across all affected federal agencies. Smartly, the White House has counseled “patience” and a deliberative, careful approach with an eye towards making the right changes in the right manner and in a way that avoids ambiguity and confusion down the road. Notably, Congressional action designed to reconcile existing legislation to the Windsor majority is less likely to prevail, especially in light of the likely insurmountable opposition to the issue on the part of House Republicans.