Originally posted on July 2, 2013
In a major victory for supporters of same-sex marriage, the Supreme Court issued a decision in United States v. Windsor that struck down the main part of the Defense of marriage Act defining marriage as solely a union between a man and a woman. The five-justice majority, led by Justice Anthony Kennedy, decided the case on the grounds of equal protection infused with federalism, as we humbly note we had predicted. The majority did not rule on, leaving for another the day, the broader question of whether bans on same-sex marriage violate the US Constitution. But, in an angry dissent, Justice Antonin Scalia scoffed at the notion that the majority has not already decided to strike down state bans on same-sex marriage:
[T]he real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by [a] “bare … desire to harm” couples in same-sex marriages. [Citation omitted.] How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.
The case of Hollingsworth v. Perry was also very significant. In that, the court ruled that the petitioners, private citizens challenging a trial court decision striking down California’s ban on same-sex marriage, lacked standing to appeal the decision. Although the Supreme Court did not rule on the constitutionality of same-sex marriage bans, the effect of its decision was to uphold a lower court ruling that California’s ban on same-sex marriage violated the US Constitution. After the decision, California immediately began to issue marriage licenses for same-sex couples, and Justice Anthony Kennedy rejected a request by opponents of same-sex marriage to stop those marriages while they considered next steps in their opposition. It would be false to say that the Supreme Court’s actions with respect to same-sex marriage raise more questions than they answer. Windsor answers a huge question and its impact – direct, on the lives of same-sex couples – and more generally on the place of LGBTQ+ people in this country and in the world cannot be overstated. But same-sex marriage was in a state of flux before Windsor and Hollingsworth v. Perry, and it still is. In the past year, the states of Delaware, Maine, Maryland, Minnesota, Rhode Island, and Washington have legalized same-sex marriage, while many states have laws or constitutional provisions defining marriage as solely a union between a man and a woman. After Windsor, while married same-sex couples living in states that recognize their marriages will be treated the same as heterosexual couples under federal law, married same-sex couples who live in states that do not recognize their marriages will have access to some, but not all, federal benefits that others have access to. The extent to which federal law will apply to them will depend on whether the executive branch department or federal agency with jurisdiction over the particular benefits (and obligations) bases its determination of the validity of a marriage on the laws of the “state of celebration” (where the couple married) or on the laws of the state where the couple lives, and depending on how easy it is to change that policy in particular Departments or agencies. We can be sure that the issue of same-sex marriage will remain in the headlines for months, and likely years, to come.