The U.S. Supreme Court heard arguments today on Section 3 of the Defense of Marriage Act (DOMA) in the case of United States v. Windsor.
Section 3 of DOMA, adopted in 1996, prohibits the federal government from recognizing the validity of same sex marriages that are valid under state law for federal law purposes such as immigration, federal income taxation, and Social Security benefits.
This case and many others in the pipeline challenging its constitutionality, do not attack the constitutionality of the other key provision of DOMA which provides that states do not have to give full faith and credit to gay marriages from other states under federal law.
The federal government initially defended the constitutionality of the law, then withdrew its opposition to it during the course of the case. Attorneys representing the leadership of the House of Representatives are defending its constitutionality. The trial court and appeals court both held that Secton 3 of DOMA is unconstitutional.
The government's switch of position on the issue is closely related to its decision to end the ban on gays in military service. Section 3 of DOMA would deny their partners the spousal benefits of active duty soldiers and veteran's benefits available to other soldiers.
This is not a one-off case. Federal courts in multiple jurisdictions have made similar holdings that are working their way through the appellate pipeline, aided by the federal government's refusal to defend the law in court. However, the federal government is enforcing Section 3 of DOMA until a final federal court order tells it otherwise.
Five justices (Kennedy and the four liberal justices) seemed to indicate in oral arguments that Section 3 of DOMA was probably unconstitutional.
Justice Kennedy told Clement that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage. Kennedy also seemed troubled about the sweeping breadth of DOMA’s Section 3, noting that its ban on benefits to already married same-sex couples under 1,100 laws and programs would mean that the federal government was “intertwined with citizens’ daily lives.” He questioned Congress’s very authority to pass such a broad law.
Moreover, Kennedy questioned Clement’s most basic argument — that Congress was only reaching for uniformity, so that federal agencies would not have to sort out who was or was not married legally in deciding who could qualify for federal marital benefits, because some states were on the verge of recognizing same-sex marriage.
Along with sharply negative comments about DOMA by the Court’s four more liberal members, Kennedy’s stance could put the law on the edge of constitutional extinction. But, if the Court were to do that based on states’ rights premises, the final ruling might not say much at all about whether same-sex couples were any closer to gaining an equal right to marry under the Constitution.
There did not appear to be a majority of Justices willing to strike down the 1996 law based on the argument that the Obama administration and gay rights advocates have been pressing: that is, the law violates the Fifth Amendment guarantee of legal equality in general.The merits of Section 3 of DOMA can only be reached nationally, however, if the House of Representatives leadership which brought the appeal has standing to do so, which was also at issue. If they did not have standing, the U.S. Court of Appeals circuit ruling would stand and would be persausive precedent, even more so in light of oral arguments in the U.S. Supreme Court on the issue today, but would not be binding precedent in other circuits. The standing issue would also be pertinent to a great many other constitutional issues. A finding that the House lacked standing would enhance Presidential authority to not defend the constitutionality of laws in a wide variety of areas in the future.
In order to rule on DOMA’s validity, the Court has to be persuaded that it has a genuine controversy before it — that is a real legal dispute between opposing parties, each of whom has a direct interest in the outcome. Whether it has that was the issue, with Professor Jackson arguing that the administration wants the same thing as Ms. Windsor — the nullification of DOMA Section 3 — so the Court has no jurisdiction over the government’s appeal, and arguing that the House GOP leaders have no direct harm they can claim even if DOMA is nullified.
The Justices seemed somewhat at odds over whether they do have the authority to go ahead with this case, so the possibility remained that the Court in the end could choose not to decide the merits of the law’s validity. That portion of the argument focused on just who in Congress, if anyone, could be in court to defend a federal law when the executive branch chose not to do so.
Justice Kennedy seemed to be leaning toward finding that there did exist a live controversy — between the government and Mrs. Windsor, over whether she is entitled to a refund of an estate tax she paid on her late spouse’s estate. But Chief Justice John G. Roberts, Jr., commented that the Court had never ruled on a case in which all of the parties involved agreed — as he suggested would be the case with the government and Ms. Windsor sharing their opposition to DOMA.
It did not appear, however, that Clement had succeeded in contending that the House GOP leaders (BLAG) had a full right to be in court to defend DOMA in the absence of a defense by the government.Thus, Section 3 of DOMA is almost sure to be ruled unconstitutional, either in the 2nd Circuit in a precedent which federal government officials and other circuits are very likely to follow nationally, or nationally as a result of a ruling in this case.
It is also possible that the power of Congress to defend a law in Court, at least in the absence of a joint resolution from both houses of Congress as opposed to a decision of the leadership of just one house of Congress, could be narrowed or eliminated in general.
A ruling that Section 3 of DOMA is unconstitutional and that state law on the validity of a marriage should govern would greatly increase the pressure on states to go beyond civil unions legislation like that recently passed by Colorado which does not confer federal law benefits, to full gay marriage which would confer federal law benefits, even without the mandate that the Proposition 8 case decided yesterday could impose depending upon how it is decided.
The next wave of DOMA issues: choice of law.
A ruling that Section 3 of DOMA is unconstitutional also opens up significant choice of law issues regarding whose law determines if a couple is married. The case before the court presented the easy and most common case where a couple was marriaged in a state that had gay marriage and continued to live in that state. The case where a couple was married in a state that had gay marriage and lived in a state that gave full recognition to that status (perhaps because it has gay marriage itself, or perhaps as a back door solution to a state constitutional ban on gay marriage), is another easy case.
But, if a couple marries in a state that recognizes gay marriage and then moves to a state that does not recognize gay marriage with the blessing of a different section of DOMA that has not been held unconstitutional, the question is not so easy to resolve.
Does the law of the state where the marriage was entered into govern for federal law benefit purposes (an easy to apply rule, even though it undermines the ability of states to prevent any sort of gay marriage from having legal effect in its state), or does the state where the couple resides matter?
I suspect, that when the issue eventually comes up, the answer will be that the law of the place where the marriage was entered into will govern for federal law purposes.
This, in turn, suggests that many couples in civil unions only states may solve their inability to marry under their own state's laws by forming a civil union in their state of residence and then getting married in a state that recognizes gay marriage before returning home. This way, they would have full state benefits under a civil unions law, and full federal benefits under their marriage in another state. It would effectively provide a back door way to obtain the full benefits of same sex marriage in civil union only states, thereby circumventing state constitutional prohibitions on gay marriage without legislative action or a court declaring that state constitutional provision to be unconstitutional.
This choice of law analysis would not, however, afford state law benefits to same sex couples married in other states and recognized under federal but not state law. For example, states would not have to allow same sex couples married in other states to divorce in their state (although Maryland courts, which was on the verge of adopting gay marriage, did just that before its gay marriage laws took effect).
Eventually, this situation in states without gay marriaage would probably become untenable and give rise to equal protection challenges striking the state law gay marriage bans, or to a later ruling holding that the full faith and credit provisions of DOMA are unconstitutional would have essentially the same effect, but in all states. But, those rulings would happen years from now when public opinion on gay marriage was greatly changed.
California's Proposition 8
Yesterday, the U.S. Supreme Court heard arguments in the cas (Hollingsworth v. Perry) concerning the constitutionality of California's Proposition 8.
Prior to Proposition 8, California courts held that gay marriage was allowed in the state on state constitutional grounds. A citizen's referrendum overturned that ruling by amending the state constitution.
California officials refused to defend the measure in a federal court challenge to Proposition 8's constitutionality because they agreed that it was unconstitutional, but the proponents of the measure were allowed to defend its constituionality at trial with the consent of the state officials. The federal court held that Proposition 8 was unconstitutional under a rational basis standard of review.
The proponents appealed to the 9th Circuit Court of Appeals without the consent of the state officials. The 9th Circuit sought a certification from the California Supreme Court to determine if the proponents had standing to appeal under California law and the California Supreme Court held that they did. The 9th Circuit, relying on the certified question answer held that the proponents also had standing to appeal under federal law and proceeding to affirm the federal district court judge's ruling that Proposition 8 was unconstitutional.
The proponents appealed that ruling to the U.S. Supreme Court which granted certiorari and held oral arguments yesterday.
The three conservative justices who spoke at oral arguments left the impression that they were ready to reverse the 9th Circuit and hold that Proposition 8 was valid under the federal constitution and it would be fair to assume that Justice Thomas, who did not speak as is his custom, would side with them. This would have ended federal law based efforts to secure gay marriage.
The four liberal justices appeared inclined to affirm the 9th Circuit, although the grounds upon which they would do so were not entirely clear:
* they could hold that a lack of federal standing which would apply only to this California case and conceivably could allow a later challenge by someone with standing,
* they could hold that gay marriage couldn't be abolished once a state had gay marriage, which would apply only to California,
* they could hold that a repeal of gay marriage once you had civil unions was unconstitutional limiting the ruling to the eight states with civil unions (Colorado as of May 1, 2013 would be the ninth), or
* they could hold broadly that there was a constitutional right to gay marriage which would apply nationally.
Justice Kennedy, the swing justice, who was part of the majority in the Lawrence opinion which held that same sex sodomy between consenting adults could not be criminalized under federal constitutional privacy protections, didn't like any of the coonservative or liberal options and was leaning towards denying certioriari entirely, suggesting that the decision to take up the case was improvident.
The impact of a possible withdrawal of certiorari
Justice Kennedy's option of punting on the issue would leave in place the 9th Circuit opinion holding that California's Proposition 8 was unconstitutional in circumstances where a state that once had gay marriage and still had civil unions breached equal protection guarantees without a rational basis for doing so by denying gay's marriage. This ruling could probably be extended to other states in the 9th Circuit which have civil unions but not gay marriage.
This would have no impact in Washington State which already had gay marriage, would provide a strong precedent for turning civil unions into gay marriage in Hawaii, Oregon and Nevada which arre in the 9th Circuit and have civil unions, would leave unchanged Alaksa, Idaho, Montana and Arizona that have never had civil unions or gay marriage.
The 9th Circuit case would be a non-binding persuasive authority in Rhode Island (2nd Circuit), New Jersey (3rd Circuit), Wisconsin (7th Circuit), Illinois (7th Circuit), and Colorado (10th Circuit). This would in effect, a "1+3 state solution."
All of the states in the 1st Circuit, and all of the state except Rhode Island in the 2nd Circuit (which has civil unions), already have gay marriage. In the 3rd Circuit, New Jersey has civil unions and Pennsylvania and Delaware have neither civil unions nor gay marriage. In the 4th Circuit, Maryland has gay marriage and none of the other states have gay marriage or civil unions. In the 8th Circuit, Iowa has gay marriage and none of the other states have civil unions. No states in the 5th, 6th, or 11th Circuits have gay marriage or civil unions.
Thus, in the near future, the SCOTUS decision in this case would be irrelevant in the 1st, 4th, 5th, 6th, 8th or 11th Circuits (or the Federal Circuit which lacks jurisdiction over these kinds of cases). The U.S. Supreme Court would have time to determine if the 9th Circuit precedent was distinguished in later 9th Circuit cases or followed by the 2nd, 7th, or 10th Circuits.
Justice Kennedy worries that U.S. Supreme Court precedent establishing a ratchet effect may discourage states from adopting civil unions or gay marriage, a concern that is particular apt as a new holding on the constitutionality of the Defense of Marriage Act and rapidly shifting political opinion on the gay marriage issue may lead many states that have civil unions now to adopt gay marriage in the near future. When Section 3 of DOMA is constitutional, there is no difference between a civil union and gay marriage except a name, since federal law may not recognize gay marriage pursuant to it. If Section 3 of DOMA is unconstitutional, then gay marriage would confer federal marriage rights, while civil unions would not.
Justice Kennedy, rightly, assumes that all other things being equal, it would be healthier for the long term acceptance of gay marriage and for U.S. Supreme Court legitimacy, if any final decision on the constitutional right to gay marriage or the equal protection issues of civil unions v. gay marriage, were resolved nationally only after the issue had an opportunity to play out in the states via legislative, intitiative, and court action in light of new rulings on Section 3 of DOMA, federal recognition of gay couples in many contexts including military benefits, and litigation of the issue in multiple United States Courts of Appeal circuits giving rise to a circuit conflict, before being mandated nationally with the highly fluid issue not yet well developed. Gains outside the U.S. Supreme Court probably would lead to greater acceptance of gay marriage than gains from this unelected group of nine justices appointed for life from on high.
For example, it is likely that Colorado will adopt a state constitutional amendment mandating gay marriage in the next few years, particularly if Section 3 of DOMA is held unconstitutional. And, quite a few other states are likely to do so in the near future given trends in public opinion and strong federal recognition of same sex marriages where states allow them in the executive and judicial branches.
It may be that the nation will soon neatly be divided into gay marriage states and states with no gay marriage or civil unions. Or, it may be that the dam will finally break and gay marriage will spread into states that no constitutionally ban gay marriage or anything like it. The Supreme Court would make a wiser judgment if it was informed by several years of developments on this front.