Real Defense of Marriage
Supreme Court will finally take up two watershed marriage cases, including California’s Prop. 8.
Thursday, December 13, 2012
It’s no shocker that the Supreme Court of the United States decided last week to hear United States v. Windsor, which questions the constitutionality of Section 3 of the Defense of Marriage Act (DOMA). By defining the word “marriage” to apply solely to “a legal union between one man and one woman as husband and wife,” this provision excludes legally married same-sex couples from every single one of the 1,138 federal benefits and protections available to married heterosexual couples. It also marks the only time in our nation’s entire history the federal government has not deferred to a state’s definition of who is and is not married.
Make no mistake: The benefits and protections Congress denied to legally married same-sex couples are big. Think Social Security benefits; health insurance free of the “gay tax” that applies to “unmarried” couples; the Family Medical Leave Act; and estate protections that allow a spouse to leave assets to their other spouse without incurring a tax penalty.
It is this last question in particular that comes to the fore in the Windsor case, which concerns Edith Windsor and Thea Clara Spyer, who were legally married in Canada in 2007 and resided in New York (the only state to recognize same-sex marriages legally performed elsewhere). When Spyer died in 2009, leaving her property to her spouse, DOMA prevented Windsor from being treated as a legally married surviving spouse, resulting in a tax bill of $360,000 that no opposite-sex spouse would ever be required to pay. A federal appeals court found Section 3 unconstitutional, and ruled in Windsor’s favor.
THE PROTECTIONS CONGRESS DENIED TO LEGALLY MARRIED SAME-SEX COUPLES ARE BIG.
Far more surprising is the court’s decision to hear Hollingsworth v. Perry, better known as the Proposition 8 case. Writing for the Ninth Circuit 2-1 majority last February, Justice Stephen Reinhardt wrote a narrow, California-centric decision that found Prop. 8’s amendment of California’s state constitution failed the rational basis test and violated the Equal Protection Clause of the 14th Amendment. Reinhardt’s decision in no way took up the question of whether lesbian and gay Americans have a fundamental right to marriage – but the Supreme Court, theoretically, could.
But here’s the kicker. The first question the court will take up will be about standing – in essence, the legal right to appeal. In Hollingsworth, where California decided against continuing to defend Prop. 8 after its initial defeat in district court, the question will be whether Prop. 8’s supporters had standing to bring the case before the Ninth Circuit to begin with. If the supremes say no, Justice Vaughn Walker’s earlier decision would stand and same-sex marriage would go forward in California. A similar question comes up in Windsor, since the Obama administration stopped defending DOMA in the courts last year. That’s how we wound up with the House Republican-controlled Bipartisan Legal Advisory Group (BLAG) appealing. If the court decides that BLAG has no standing, the decisions of the two earlier federal appeals courts will go forward. That would leave the issue of constitutionality of DOMA to each of the federal circuits – and that could result in conflicting rulings.
Given the chance that the Supreme Court punts, the best word on what’s happening now may come from Dale Carpenter, law professor at University of Minnesota. “I’m generally skeptical there are five Justices willing to vote for marriage equality,” Carpenter says. “But in both of these cases the court has given itself a potential way to avoid decisions on the merits. We have the potential for results that guarantee marriage equality without requiring the justices to explain why.”
Fascinating stuff. Stay tuned.
NANCY GOLDSTEIN’s work has appeared on Salon.com and Slate.com.