WASHINGTON – In a ruling that will have an immediate effect on more than 1,000 federal laws and programs, the U.S. Supreme Court has struck down the Defense of Marriage Act, holding that the law prohibiting recognition of state-sanctioned same-sex marriages for federal purposes unconstitutionally violates equal protection principles.
But in another case challenging the constitutionally of California’s voter-imposed same-sex marriage ban, the court issued a narrow and technical decision, holding that the parties in the case lacked standing to appeal a federal court decision striking down the law.
The decision in the California case, Hollingsworth v. Perry, did not reach the merits issue of the constitutionality of the same-sex marriage ban known as Proposition 8, so it has no direct effect on the validity of same-sex marriage in other states. But it does reinstate a federal court ruling invalidating California’s ban, giving same-sex couples the ability to marry in the state.
The DOMA ruling, U.S. v. Windsor, will be felt much more broadly, immediately ending federal rules that deny legally married same-sex couples rights and benefits. The language of the opinion will also serve as fodder in future challenges by same-sex couples seeking to marry legally in states that currently prohibit it and those seeking to have their state-sanctioned marriages recognized by other states.
Justice Anthony M. Kennedy wrote for a 5-4 majority that the federal law violates equal protection principles by depriving couples legally married under state law from receiving the same federal benefits conferred on other married couples, thus “creating two contradictory marriage regimes within the same state.”
“DOMA’s principal effect is to identify a subset of state sanctioned marriages and make them unequal,” Kennedy wrote.
But in a dissent announced from the bench, Justice Antonin G. Scalia said that the court should have dismissed the challenge for lack of standing as it did in Hollingsworth, reasoning that the justices had “no power under the Constitution to invalidate this democratically adopted legislation.”
Scalia also rejected the majority’s equal protection analysis on the merits, and wrote off the majority’s assurance that the decision had no application to state-law-based challenges to same-sex marriage.
“[T]he view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion,” Scalia’s said. Given the DOMA analysis, Scalia wrote, “[h]ow easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”
Attorneys representing same-sex couples called both decisions victories, and those on both sides of the issue vowed to continue the constitutional fight on a state level.
While the justices did not reach the merits in the California case, other merits challenges will follow, said David Boies, chairman of the firm Boies, Schiller and Flexner LLP in Armonk, N.Y., who represents same-sex couples challenging Proposition 8.
“Everything that the Supreme Court said in the [DOMA] opinion, where they did reach the merits, demonstrates that when that case does come to the U.S. Supreme Court, marriage equality will be the law throughout this land,” Boies said outside the Supreme Court building Wednesday after the decisions were issued. “As Justice Scalia noted [in the Windsor dissent], that holding, that principle guarantees the right of every individual in every state to marriage equality.”
In the meantime, Boies said, “my clients get to go back to California, and along with every other citizen of California, marry the person they love.”
House Speaker John Boehner, R-Ohio, who, along with other GOP lawmakers, voted to commission the Bipartisan Legal Advisory Group to defend DOMA against constitutional challenges after the Obama Administration declined to, said in a statement that “[t]he House intervened in this case because the constitutionality of a law should be judged by the Court, not by the president unilaterally.”
“While I am obviously disappointed in the ruling, it is always critical that we protect our system of checks and balances,” he said.
Noting that the court has largely left the legality of same-sex marriage to the states, Boehner expressed hope “that states will define marriage as the union between one man and one woman.”
DOMA ruling could give fodder to state claims
Hollingsworth came to the Supreme Court at the end of a complicated and procedurally complex road. After same-sex couples seeking to marry challenged the law in federal court, California officials refused to defend the constitutionality of the law. A district court declared Proposition 8 unconstitutional and permanently enjoined its enforcement.
Proponents of the law stepped in to appeal the decision, and when the 9th U.S. Circuit Court of Appeals asked the California Supreme Court to rule on whether they had standing, the state court found that they did. The 9th Circuit took the case up on the merits and affirmed the district court.
But the U.S. Supreme Court, in a 5-4 opinion by Chief Justice John G. Roberts Jr., found otherwise. Because the proponents of the same-sex law ban suffered no legally cognizable injury, they could not bring the appeal, the court held.
“No matter how deeply committed [the plaintiffs] may be to upholding Proposition 8 or how ‘zealous [their] advocacy,’ that is not a ‘particularized’ interest sufficient to create a case or controversy under Article III,” Roberts wrote. “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.”
But the court’s ruling on DOMA’s merits, while not directly affecting states’ laws, will have at least a ripple effect on state law challenges, attorneys said.
“[Windsor] does not itself invalidate state laws limiting marriage to opposite-sex couples,” said Andrew J. Pincus, a partner in the Washington office of Mayer Brown LLP. “But there is language in the opinion that reaches more broadly, recognizing that same-sex couples — and their children — have a strong interest in being allowed the same opportunity as others to enter into relationships recognized by law. That language will be used in future cases to support constitutional challenges to denial of same-sex marriage, as Justice Scalia predicts in his dissenting opinion.”
The DOMA ruling will directly affect a host of federal rules and benefits, from marital-based estate tax exemptions, which were at issue in Windsor, to federal laws and rules governing Social Security benefits, medical leave, veterans’ benefits, bankruptcy rules and more. But it could create disparate outcomes with respect to some federal rules, such as those governing Social Security spousal and survivor benefits, that rely on state-law definitions of marriage.
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