So first and foremost, I’m delighted to see the Supreme Court decided to strike down DOMA this morning. I’ve long feared that they would either uphold the law or cop of out of ruling on it somehow and that the gambit to put it before the Supreme Court would ultimately cost the LGBT Rights Movement ten years or more. I really love being proven wrong like this 🙂 That said, I’ve seen lots of friends asking questions related to the ruling in my Facebook feed. I’m neither a lawyer nor a constitutional scholar, but I’ve been told on occasion that I have a talent for explaining complicated things in a way that makes sense to the lay person, so I’m going to put what I understand out there so hopefully it’ll help some folks understand what just happened.
If you are a constitutional scholar or lawyer and I get any of this wrong/oversimplify it, please feel free to call me out on it 🙂
What just happened?
The Supreme Court (SCOTUS–I love that acronym 🙂 ) just ruled that section 3 of the Defense of Marriage Act is unconstitutional and technically killed California’s Proposition 8 law.
What did these laws do?
DOMA essentially made it so that same sex couples were not recognized by the federal government in the same way that heterosexual couples are. For example: when people die and leave their inheritance to their loved ones, if those loved ones are not part of their immediate or extended family (ie, close friends, etc) they have to pay a tax on the inheritance. Since DOMA was passed, a gay couple have been treated like close friends instead of a married couple, regardless of if they’ve been properly married or not. This gets even stickier when it comes to who has power of attorney or the ability to make decisions if one’s partner receives a life-threatening injury. Basically, DOMA made it so that gay couples could never be treated under federal law as anything more than close friends.
Proposition 8 was a state constitutional amendment passed in California that did much the same thing. It overturned a previous California State Supreme Court ruling that said gay couples did have the right to marry.
Is gay marriage legal now?
In 12 states, yes. By striking down DOMA, SCOTUS didn’t rule that gay marriage is legal, only that federal laws making it illegal are unconstitutional.* Basically, states that have already legally authorized gay marriage (currently Connecticut, DC, Iowa, Massachusetts, Maryland, Maine, New Hampshire, New York, Vermont, and Washington with California, Delaware, and Rhode Island expected to join soon) have the federal government backing that choice. Gay couples who get married there can now expect to have the full protection under federal law and get treated like any other married couple. If you live outside these states, however, your state still does not have a law that allows your marriage to be recognized.
Why did SCOTUS strike down DOMA?
The long and short of it is that it violates the equal protection clause of the 5th amendment of the Bill of Rights. Basically, SCOTUS ruled that section 3 of DOMA constituted the federal government practicing a form of discrimination specifically targeting one group of people and thanks to the constitution, they’re not allowed to do that. You can read a full description of the majority opinion (fair warning: it’s really long) here.
If I marry my partner in one of these states and move to another where gay marriage isn’t legal, will my marriage be recognized there?
We don’t know yet. Basically, SCOTUS ruled on a single section of DOMA–the one barring same sex couples from receiving federal benefits even if married. There’s another section saying that one state does not have to recognize a marriage carried out in another state that SCOTUS did not rule on (I’m not even sure it was a part of this case).
Here’s a similar case: let’s say in state A you can get married at 16, but in state B you can’t get married until your 18. You get married in state A, but at the age of 17 you move to state B. Does that mean state B has to recognize your marriage?
Part of the question here will come down to how the executive branch now enforces the ruling. A lot of us forget from high school that the three branches of government ostensibly are meant to have three different functions: Congress passes laws, the President and executive branch enforce them, and the Courts are meant to decide if those laws are just and/or constitutional. Obama has said on record that he both supports gay marriage but also believes that individual states should decide the issue for themselves. We’ll have to wait to see how he and the executive branch interpret their mandate after the ruling. Do not be shocked if this very issue starts another court case.
There might be an interesting way around this section of the law if Obama and Congress want to play it this way: there’s no federal law saying that the drinking age is 21. The way the federal government achieves this de facto is that they’ve made it a law that no state can receive federal funds to manage their highways if their drinking age is not set to at least 21. No state wants to give up that money, so they’ve all individually passed laws to make the minimum age to purchase alcohol 21. A similar kind of incentive could be created to have states where gay marriage isn’t legal still recognize marriages from other states. What would that incentive be? No idea…but I trust that there are creative people who could come up with one.
So what about Proposition 8–did SCOTUS likewise rule it unconstitutional?
Not quite, they basically killed the law on a technicality. When proposition 8 was challenged in the California Supreme Court, the state refused to defend it, so the civil group that had lobbied for its passage stepped in to defend it instead and get it up the chain of appeals to SCOTUS. What SCOTUS essentially did was say that they couldn’t rule on it because it should never have come before them in the first place. If the state didn’t defend the law, then the law should have been struck, not handed off to a civil group to defend. They’ve sent the law back to the California Appeals Court, in which the state is still not going to defend it. The net result is that the law is dead and gay marriage is once again legal in California.
When will California get around to letting same sex couples get married again, then?
Really whenever it wants. They could start back up this afternoon if it suited the state’s fancy.
Isn’t it kind of weird that SCOTUS would rule against the Voting Rights Act in the same week that they rule against DOMA if they’re all about equal rights?
Heh…yeah, about that…
Is that it, then? Is gay marriage decided?
Nope…a pretty big battle has been won and one major impediment to LGBT people having completely equal rights has been removed, but we still have section 2 of DOMA to deal with (the one saying that a same-sex marriage made in one state doesn’t have to be recognized by any other). We also only have gay marriage legal in 12 states. It’s likely that more and more states will individually legalize gay marriage in the coming years for a few reasons:
First, gay people are likely to move to states where they can legally marry their partner. If they can’t do that in their home state, it means their tax dollars are going elsewhere and no state actively wants to lose a significant percentage of their income tax dollars.
Second, there’s overwhelming public support for the issue.
Third, this is pretty widely recognized as the great civil rights issue of our time. As more and more states legalize gay marriage it provides a powerful incentive for other states not to be seen as being on the wrong side of history. It won’t happen overnight but it will eventually happen.
Also: LGBT people still face an extraordinary amount of discrimination in our culture. Having them be legally protected is only the broadest of protections. There is still a mountain of work that needs to be done to shift individual attitudes. Plus, while the gay and lesbian communities have made huge strides in the past few years, protections for transgendered people still lag behind both in awareness and progress.
Thanks for reading–hope this helps some of y’all out there 🙂
* Updated to clarify. Original sentence read: “By striking down DOMA, SCOTUS didn’t rule that gay marriage is legal, only that laws making it illegal are unconstitutional.”
The Polymath's Dilemma 