The current Supreme Court Justices. Back row, left to right: Sonia Sotomayor, Stephen G. Breyer, Samuel Anthony Alito, Jr., Elena Kagan. Front row, left to right: Clarence Thomas, Antonin Scalia, John G. Roberts, Jr., Anthony M. Kennedy, Ruth Bader Ginsburg.
Yesterday the Supreme Court of the United States had a day that looked busy, but fell short of some crucial goals for gay rights.
In the first round, they dismissed a case that sought to overturn the 2010 overturning of California’s “Proposition 8.” This paves the way for same-sex couples to obtain legal marriages in California, which is an excellent short term goal. The back story here is that Proposition 8 was a 2008 California ballot proposal and state constitutional amendment which declared that “only marriage between a man and a woman is valid or recognized in California.” That amendment was overturned in a United States District Court, which ruled that it violated the federal Constitution’s Due Process and Equal Protection clauses. This ruling was later upheld by the Ninth Circuit Court of Appeals, but a stay on the law remained in place as appeals continued to the Supreme Court. The Supreme Court’s dismissal makes the 2010 overruling valid, which means same-sex marriage within California can happily resume.
Unfortunately, SCOTUS took the quick and dirty way out of this one. They dismissed the case on the grounds that the parties seeking the appeal had no legal grounds to do so. By choosing to dismiss rather than to rule upon the case, it means that the 29 other states whose constitutions ban same-sex marriage automatically have those laws upheld, though they violate the federal Constitution’s guarantees of Due Process and Equal Protection just as much as California’s short-lived constitutional ban did.
Massive opportunity lost in round 1.
Round two also looks similarly promising on its face value, for SCOTUS declared section 3 of the the Defense of Marriage Act (DOMA) unconstitutional. This section reads as follows:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.
SCOTUS declared this section of DOMA unconstitutional for it effectively trumps the laws of the 12 states (Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington), the District of Columbia, and the five Native American tribes (the Coquille Indian Tribe, the Suquamish Tribe, the Little Traver Bay Bands of Odawa Indians, the Pokagon Band of Potawatomi Indians, and the Iipay Nation of Santa Ysabel) that have all legalized same-sex marriage. This ‘trump’ is what is unconstitutional since, according to the Tenth Amendment, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Since the federal Constitution itself has no ruling upon marriage, it is state law that has the final say on who can legally be married and thus be subject to the 1,000+ federal laws in which marital status matters.
On the one hand, the same-sex married couples in the states where it is legal to be married can happily enjoy such things as not having to pay federal estate taxes on property inherited from a deceased spouse, which is awesome. On the other hand, though, other parts of DOMA are still upheld, especially section 2 which declares that :
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
This means that if a same-sex couple who was legally married in a place where such a union is legal moves to a state where that union is prohibited by the state’s constitution, that state does not have to recognize their marriage. This can matter when it comes to things such as a surviving spouse receiving Social Security survivor benefits, which depends upon where the couple is living when one party dies. As of now, it is unclear whether that legally married couple would be eligible for such things if they move to a state where same-sex marriage is prohibited.
Clearly there’s some issues of Equal Protection at risk in section 2 as well, but SCOTUS sidestepped that issue altogether.
Massive opportunity lost in round 2.
While I’m glad that California’s Prop 8 and DOMA’s section 3 were thoroughly killed, I wish that the Justices could have given a broader ruling that would at least allow legally married same-sex couples to enjoy their rights in this country no matter where their lives physically take them. Alas, the only thing that could settle this debate–a Supreme Court ruling on the federal Constitutionality of a state constitution’s ban on same-sex marriage–still looms on the horizon.
Three Hundred and Sixty-Six 