To the surprise of no one who has been paying attention, the June 26, 2013 United States Supreme Court opinions in the cases of United States v. Windsor, 133 S.Ct. 2675 (2013), and Hollingsworth v. Perry, 133 S.Ct. 2652 (2013), strengthened the rights of homosexuals to marry, while avoiding the issue of whether the Equal Protection Clause of the United States Constitution mandated every state offer homosexuals the right to marry.  Both cases presented procedural hurdles involving standing–the ability of litigants to pursue a claim–with a majority of the Supreme Court using standing to avoid the substantive issue in Hollingsworth but finding sufficient standing to address the substantive issue in Windsor.

The key to predicting these holdings was understanding Justice Kennedy’s sympathy to constitutional protections for homosexual rights.  Kennedy is considered the “swing” vote on most 5-4 cases, though he typically sides with the conservative position–as he has already done this week on one voting rights case and two employment discrimination cases.  However he has been the author of the two previous Supreme Court opinions giving protection to homosexual rights: Romer v. Evans, 517 U.S. 620 (1996) and Lawrence v. Texas, 539 U.S. 558 (2003).  Thus five current members of the Supreme Court favor protection of homosexual rights.

The substantive issue in Windsor was whether Section 3 of the Defense of Marriage Act (DOMA), which forbids the United States government from recognizing duly consummated homosexual marriages, violates equal protection and is therefore unconstitutional.  Ms. Windsor entered a homosexual marriage in Canada and resided with her wife in New York.  New York later passed a law recognizing homosexual marriages performed elsewhere (New York recently authorized the licensing and performing of homosexual marriages within that state).  Because, under DOMA, the United States refused to recognize her marriage even though New York State did, when Windsor’s wife died she was required to pay $363,053 in estate taxes.  She paid these taxes and sought a refund. The Internal Revenue Service denied the refund request, concluding that under DOMA Windsor was not a “surviving spouse.”  Windsor commenced her refund suit in Federal District Court, contending that DOMA violates the Fifth Amendment guarantee of equal protection.

After Ms. Windsor prevailed in District Court, the Obama administration refused to defend the constitutionality of DOMA but also refused to refund Ms. Windsor these funds until there was a definitive court ruling on the constitutionality of Section 3.  The Bipartisan Legal Advisory Group (BLAG) of the House of Representatives then intervened in the litigation to defend Section 3’s constitutionality.  BLAG’s zealous advocacy in support of Section 3, along with the myriad other cases winding their way through the federal courts challenging  that section, convinced a majority of the Supreme Court to address the constitutional issue.  The three justices who would have denied standing to BLAG believed that the Obama administration’s acknowledgment that Section 3 of DOMA was unconstitutional and its refusal to defend rendered the matter nonjusticiable.

Kennedy, who authored the majority opinion in Windsor, started by noting that the federal government had traditionally deferred to the states to individually define marriage.  Kennedy then found the federal government’s decision to interfere with this state right as it involved homosexual marriage to be an unwarranted intrusion that left married homosexuals second class citizens bereft of the protection of over 1,000 federal statutes related to marriage.   His opinion concludes:

The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.

As Linda Greenhouse points out in her excellent New York Times analysis of Kennedy’s opinion:

Justice Kennedy’s majority opinion in the DOMA case mingles several strands of constitutional analysis: a little federalism (the states’ traditional role in defining marriage), a little equal protection (DOMA insists that some state-sanctioned marriages are unequal to others), a little substantive due process (the statute withholds respect, “personhood and dignity” from married same-sex couples).

Of the four dissenters (Robert, Scalia, Thomas and Alito), all found Section 3 to be constitutional and all but Alito found that BLAG lacked standing to defend the action.  Both Scalia’s and Alito’s dissent describe applying equal protection to homosexual marriage as a policy choice favoring [quoting  Alito’s dissent] “the ‘consent based’ vision of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons” over “the ‘traditional’ or ‘conjugal’ view, [that] sees marriage as an intrinsically opposite-sex institution.”

This is the general conservative critique of homosexual marriage and I find the “traditional” or “conjugal” view to be incompatible with modern social norms.  If marriage is defined primarily to produce offspring does this mean women are primarily human breed sows?  The sexism of the Abrahamic-era Middle-Eastern culture is one I suspect even “traditional” contemporary American women would find intolerable [any traditionalists seeking to reinstate polygamy or handmaidens?].

The Hollingsworth case sought to overturn Proposition 8, which modified the California Constitution so as to prohibit same-sex marriage.  Hollingsworth challenged the constitutionality of Proposition 8 in federal court under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, naming as defendants California’s Governor and other state and local officials responsible for enforcing California’s marriage laws. The officials refused to defend the law, so the District Court allowed petitioners—the initiative’s official proponents—to intervene to defend it. After a bench trial, the court declared Proposition 8 unconstitutional and enjoined the public officials named as defendants from enforcing the law. Those officials elected not to appeal, but petitioners did. The Ninth Circuit certified a question to the California Supreme Court: whether official proponents of a ballot initiative have authority to assert the State’s interest in defending the constitutionality of the initiative when public officials refuse to do so. After the California Supreme Court answered in the affirmative, the Ninth Circuit concluded that petitioners had standing under federal law to defend Proposition 8’s constitutionality. On the merits, the court affirmed the District Court’s order.

In a 5-4 decision that cut across the usual ideological lines, the Supreme Court found the initiative’s official proponents lacked standing to appeal.  This decision causes jurisprudential problems for states that have the initiative [the right of state citizens to petition to change or adopt laws directly via election rather than through the legislative process].  Typically initiatives are pursued because the legislature refuses to pass laws desired by a majority of the voting population.  If the government then refuses to defend the constitutionality of a initiative-created legislation, and the initiative’s sponsors lack standing to defend the statute, the legislature is empowered to defeat such legislation merely by refusing to defend it.

Roberts’ majority opinion dismissing the appeal due to lack of standing was joined by three liberal–and presumably pro gay marriage justices–Ginsburg, Breyer, and Kagan, and one conservative–and avowedly anti gay marriage justice–Scalia.  Kennedy’s dissent, which would have found the initiative’s proponents had standing, was joined by one liberal justice, Sotomayor, and two conservative justices, Thomas and Alito.

In these two cases, only Kennedy, Sotomayor and Alito found standing in both and only Roberts and Scalia denied standing in both.  Since neither opinion in Hollingsworth addressed the merits of the claim that denying homosexuals the right to marry violated equal protection, the case offers no guidance on how the court would have ruled on the merits.  However three members of the court’s liberal wing preferred to defer deciding the underlying issue while Kennedy would have preferred to address it.

It is unclear why Ginsburg, Breyer, and Kagan preferred to defer a decision on this issue until a later date, especially when, based on his analysis in Windsor, Kennedy would have likely providing the decisive fifth vote to find that denying homosexuals the right to marry in any state was a violation of equal protection and due process.

Ginsburg, whose early career was instrumental in establishing a number of United States Supreme Court rulings reversing gender discrimination on equal protection grounds, is outspoken in her belief that Roe v. Wade410 U.S. 113 (1973), went “too far, too fast” in establishing a constitutional right to abortion and that it would have been better had the legislative process been allowed to lead to an expansion of abortion rights.  Perhaps she (and Bryer and Kagan) had similar misgivings in this case and, given the recent wave of state legislatures and voters approving gay marriage, she (they?) preferred to allow the legislative process to continue before issuing a definitive ruling on the equal protection argument.

Meanwhile, in denying BLAG standing, the Supreme Court affirms the District Court’s ruling that Proposition 8 violated equal protection and thus homosexuals will now have the right to marry in California.

There will undoubtably be future challenges addressing the marital rights of homosexuals.  Left unaddressed in Windsor is whether Section 2 of DOMA, which authorizes states to deny marriage rights to homosexuals who have legally contracted marriages in sister states, is a violation of the full faith and credit clause.  This issue has already been litigated in the lower courts and will likely be resolved with finality by the Supreme Court within a few years.  Given Windsor, I suspect that provision of DOMA will also be found unconstitutional.  Eventually the Supreme Court may address the substantive issues raised in Hollingsworth.  However yesterday’s two decisions greatly expand the rights of homosexual marriage.

On October 18, 2012, in 2-1 decision in the case of Windsor v. United States, 699 F. 3d 169 (2nd. Cir. 2012), the United States Court of Appeals for the Second Circuit concluded that Section 3 of the Defense of Marriage Act (DOMA) violates equal protection and is therefore unconstitutional.  Many Supreme Court watchers believe this is the case that court will chose to review to decide the constitutionality of DOMA.

Since I started practicing family law in 1993 I have been a public advocate of the right of homosexuals to marry.  The struggle for marriage equality will be the defining civil rights issue implicating family law during my legal career.  Partially out of a desire to be on what I believe will be the right side of history, some of the few family law cases I will outright refuse to handle are those that would require me to advocate DOMA’s constitutionality.  Thus I find cases involving DOMA’s constitutionality to be fascinating.

Windsor may be the most fascinating such case yet.  Edith Windsor was a surviving spouse of a same-sex couple that was married in Canada in 2007 and was a resident in New York at the time of her spouse’s death in 2009.  Windsor was denied the benefit of the spousal deduction for federal estate taxes solely because Section 3 of DOMA prohibits the United States and its agencies from recognizing marriages between homosexuals.  Windsor paid $363,053 in estate taxes that she would not otherwise have had to pay had the United States recognized her marriage.  She then sued for return of these funds, arguing that Section 3 of DOMA violated her right to equal protection.

The majority agreed.  For the first time a Federal Appeals court determined that homosexuals were a quasi-suspect class for purposes of equal protection, entitling them to an intermediate level of scrutiny for laws that adversely singled them out :

The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class.  They include: A) whether the class has been historically subjected to discrimination; B) whether the class has a defining characteristic that frequently bears a relation to ability to perform or contribute to society; C) whether the class exhibits obvious, immutable, or distinguishing characteristics that define them as a discrete group; and D) whether the class is a minority or politically powerless.  Immutability and lack of political power are not strictly necessary factors to identify a suspect class.  Nevertheless, immutability and political power are indicative, and we consider them here.  In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

Citations omitted

Finding that Section 3 of DOMA could not withstand this intermediate level of scrutiny, the majority found it violated Windsor’s right to equal protection.

The dissent is equally fascinating.  In Baker v. Nelson, 409 U.S. 810 (1971), an appeal from a Minnesota Supreme Court decision finding no right to same-sex marriage, the Supreme Court issued a summary dismissal “for want of a substantial federal question.” The dissent held that Baker foreclosed a determination that laws adversely impacting homosexuals were required to withstand heightened scrutiny.

Because the Obama administration will no longer support DOMA’s constitutionality in court, Congress was left to represent the United States on appeal and the dissent analyzed the arguments raised by Congress.  Those arguments are that DOMA,

advances governmental interest in:  (1) maintaining a uniform federal definition of marriage, (2) preserving the public  fisc and respecting prior legislative judgments, (3) exercising caution, (4) recognizing opposite-sex couples’ unique ability to procreate, (5) incentivizing the raising of children by their biological parents, and (6) encouraging childrearing in a setting with both a mother and a father

The dissent focused on two factors that it held rationally justified DOMA: A) Responsible Procreation and Childrearing by Biological Parents; and B) Maintaining the Status Quo of Uniformity. It is the first argument I find fascinating:

Because the state has an interest in children, the state is thus also interested in preventing “irresponsible procreation,” a phenomenon implicated exclusively by heterosexuals.  Because of these legitimate interests, reserving federal marriage rights to opposite-sex couples protects civil society, because without the inducement of marriage, opposite-sex couples would accidentally procreate, giving rise to unstable and unhealthy families.  Marriage thus plays the important role of channeling opposite-sex sexual desires which, in the absence of marriage, would result in unstable relationships, which have been documented to be harmful to children.

Citations omitted.

The term “irresponsible procreation” came from Congress’ brief and I find its argument ridiculous but its implication hilarious.  The argument is ridiculous because allowing homosexuals to marry does nothing to undermine the benefits marriage confers on us breeding heterosexuals.  The argument is hilarious because it flatly states that but for the inducement of marriage, heterosexuals could not be trusted to engage in sexual relations carefully or breed responsibly.

I’ve heard the argument that only heterosexuals should be allowed to marry because heterosexuality is the only “proper” form of human sexuality.  Congress made an argument that stands this claim on its head.  Evidently, heterosexuals are such irresponsible, sex-crazed idiots that, but for the institution of marriage, we would have unstable relationships, indulge in accidental procreation, and rear damaged children.  Congress sure doesn’t think well of us breeders.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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