Prop8 + DOMA

Making Sense of Laws that Don't Make Sense

It was a watershed moment in the fight for marriage equality when, in March, the United States Supreme Court heard oral arguments in two major cases involving same-sex marriage. Unsurprisingly, social media buzzed with activity. On the one hand, there was an overwhelming amount of support for samesex marriage, embodied by the red and pink equality signs that took over Facebook profile pictures. Of course, those not supporting same-sex marriage also voiced their opinions. For example, there was the individual who changed his profile picture to a graphic of a man and woman holding hands. Or the one whose Facebook status conveyed his disbelief that people were focusing on marriage equality when the government had just passed a law requiring the allowance of genetically-modified foods—though, in all fairness, I’m sure that even if the fate of his ability to marry was at stake, he would have been equally up-in-arms about the current status of genetically modified foods.

The reality is that, although more than 50% of the population now supports legalizing same sex marriage (which jumps to more than 70% among those under thirty years-old), there is a very real chance that the voices opposing same-sex marriage will prevail with at least five of the nine Supreme Court Justices—the six men and three women who now hold the fate of same-sex marriage, and federal recognition thereof, in their hands.

So, let’s talk about what’s at stake. The first of the two cases, Hollingsworth v. Perry, addresses the constitutionality of California’s Proposition 8—a ballot initiative that amended California’s constitution to permit only opposite-sex couples to marry (and which passed less than five months after the California Supreme Court overruled California’s ban on same-sex marriage). Prop 8 was challenged before a federal trial judge in California, who determined that the law both violates a fundamental right to marry and constitutes unlawful discrimination against non-heterosexual individuals. Supporters of Prop 8 then appealed the case to the next highest court, the Ninth Circuit Court of Appeals. Although the Ninth Circuit agreed that Prop 8 is unconstitutional, it did so on much “narrower” grounds than the trial court, finding Prop 8 unconstitutional because it stripped the right to marry from one group only: same-sex couples, making California the first, and only, state to do so.

Because Pennsylvania does not recognize same-sex marriage, civil unions, or domestic partnerships, the only way the outcome of these cases will affect same-sex Pennsylvania couples is if the Supreme Court decides either that no state may lawfully prohibit same-sex marriage, or that DOMA is unconstitutional.

Given this complex procedural history, and based on the transcripts from the oral arguments, we know that the Supreme Court’s decision will likely go one of several ways. First, the Court could agree with the federal trial judge that laws prohibiting same-sex couples from marrying are unconstitutional, which would lead to the legalization of same-sex marriage nation-wide. This is precisely the way in which interracial marriage became legal throughout the United States in 1967 (and the reason that some, like myself, are hoping for a surprise vote for marriage equality from typically-conservative African American Justice Clarence Thomas, whose wife is Caucasian). Still, many scholars do not believe the Court will take this approach, given multiple Justices’ focus on the “newness” and “unstudied effects” of same-sex marriage on children, and on society in general.

Second, the court could instead agree with the Ninth Circuit, which decision would re-legalize same-sex marriage in California. However, because such decision is based on the unique fact that California first allowed same-sex marriage, and then stripped away that right, it would likely not affect same-sex marriage in other states.

Third, the Court could reach a middle ground and adopt the “nine-state solution.” This approach embraces the notion that states which, through civil unions or domestic partnerships, already give same-sex couples all of the rights of married couples, may not then rationally withhold from those couples the actual label of “marriage.” This would lead to the legalization of same-sex marriage in California, Colorado, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island, which would significantly increase the geographic reach of same-sex marriage and provide numerous options for couples looking to wed. In total, same-sex marriage would be legal in eighteen states and Washington, D.C.

There is also speculation that the Court will not reach any true “decision” at all, based on the fact that the state of California discontinued its defense after it lost at the trial level, and the individuals who undertook the defense at the appellate level may not have had “standing” (i.e. the right) to defend Prop 8. Such conclusion would re-legalize same-sex marriage in California, but would probably not legalize same-sex marriage elsewhere.

Finally, the Court could determine that laws prohibiting same-sex marriage do not violate the Constitution, which would inflict a devastating blow to the fight for marriage equality. Weighing against the likelihood of such outcome is the fact that the Justice most likely to place the deciding (“swing”) vote, Justice Kennedy, has expressed his concern for the 40,000 children in California living with same-sex parents and wanting their parents’ marriage to receive full recognition under the law.

Whereas the Prop 8 case involves the constitutionality of laws prohibiting same-sex marriage, United States v. Windsor deals with the constitutionality of the federal Defense of Marriage Act (“DOMA”). Importantly, DOMA does not address whether same-sex couples may legally marry; rather, it says that, for federal purposes, the word “marriage” means only a legal union between one man and one woman as husband and wife. Consequently, same-sex couples who lawfully wed in a state so allowing are nevertheless denied at least 1,138 federal marriage benefits, protections, rights, and responsibilities. For example, Ms. Windsor had to pay more than $363,000 in federal estate taxes on the inheritance of her deceased wife’s estate—money she would not have had to pay were she “married” in the eyes of the federal government. The legal question at issue is thus whether DOMA unconstitutionally discriminates against same-sex married couples by treating them differently than their opposite-sex counterparts.

As with Prop 8, there are several possible outcomes in the DOMA case. First, the Court may actually refuse to even address the discrimination issue, instead finding that DOMA unconstitutionality infringes upon the states’ right to regulate marriage. After all, there is no such thing as a federal marriage license! Although this decision would provide no indication of how the Court would view other laws that discriminate on the basis of sexual orientation, it would at least result in federal recognition of lawful same-sex marriages. Many scholars predict that the Court will take this approach, given the Court’s extensive focus on the issue during argument.

Second, the Court could determine that DOMA does discriminate unlawfully against same-sex married couples. This would give couples in the nine states (and D.C.) that recognize same-sex marriage the same federal benefits as opposite-sex married couples. Although the decision would have no direct effect on same-sex marriage in the other forty-one states, the “test” the Court uses in finding the law unconstitutional may provide a basis for challenges to state DOMAs and constitutional amendments barring same-sex marriage. For example, a law that discriminates based on race must pass a “strict scrutiny” test, whereas a law that discriminates based on weight must only pass a “rational basis” test. It is still uncertain which test the Court will apply to laws that discriminate based on sexual orientation.

Third, the Court could decide that DOMA does not infringe on states’ rights or discriminate unconstitutionally. Lawfully-married same-sex couples would thus continue to be denied federal marriage benefits.

Finally, as with the Prop 8 case, the Court could actually determine that it does not have the power to decide the case, given that the Department of Justice—the group responsible for defending the laws of the United States— and President Obama have refused to do so. Scholars are unsure of the effect such decision would have, though many predict it would still lead to DOMA being overturned.

Because Pennsylvania does not recognize same-sex marriage, civil unions, or domestic partnerships, the only way the outcome of these cases will affect same-sex Pennsylvania couples is if the Supreme Court decides either that no state may lawfully prohibit same-sex marriage, or that DOMA is unconstitutional. Though both would be ideal, even if the Court does not legalize same-sex marriage, but does strike down DOMA, same-sex Pennsylvania couples like all same-sex couples—will be able to marry in a state so allowing and enjoy the same marriage benefits as opposite-sex couples.

Now, we wait for the Court to speak and hope that, like when it struck down laws preventing interracial couples from enjoying one of the “basic civil rights of man”—marriage— the Court will again reach a decision that places it on the right side of history.

Kate Paine is a Litigation Attorney in the Pittsburgh office of Buchanan Ingersoll & Rooney PC and a member of the Firm’s Nontraditional Couples and Families group. She has written extensively on issues affecting same-sex couples for the firm’s Nontraditional Couples blog (www.nontraditionalcouples.com). The views expressed herein are those of the author alone.