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High court strikes down Defense of Marriage Act provisions

This article first appeared in the St. Louis Beacon: For the first time in its history, the U.S. Supreme Court provided constitutional protection for same-sex marriages, ruling that Congress cannot demean, stigmatize or treat them as second-class once states recognize their dignity.

On the historic final day of its term, the court threw out the federal law that prevented couples in same-sex marriages from enjoying the same federal benefits as traditional married couples receive.

The court said that Congress passed the Defense of Marriage Act, or DOMA, with an unconstitutional "animus" toward same-sex marriages based on a moral and religious disapproval. The law "demeans" same-sex couples, makes same-sex marriage "unequal" and "humiliates tens of thousands of children" living in same-sex families.

In a separate decision, the court ruled that supporters of California's Proposition 8 banning same-sex marriage did not have standing to appeal a lower court's ruling that struck it down.  Only state officials have the legal standing to defend a state law, the court said, and California's officials had refused to support Prop 8.

The impact of that procedural ruling is likely to bring same-sex marriage back to the nation's largest state and make it the 13th state, along with the District of Columbia, to recognize same-sex marriage.  Altogether, about one-third of the nation now lives in states recognizing same-sex marriage.

The collective impact of the two 5-4 decisions -- issued over an angry dissent read from the bench by Justice Antonin Scalia -- was a big win for same-sex marriage proponents. The court stopped well short of requiring all states to recognize same-sex marriage, but Scalia predicted that was just a matter of time, given the court's reasoning.

Justice Anthony M. Kennedy, the court's swing justice, wrote the opinion striking down DOMA, which declared that marriages were between a man and a woman. The law denied legally married same-sex couples the panoply of federal benefits that married couples enjoy.

Joined by the court's liberals, Kennedy based his decision on principles of federalism principles as well as the Constitution's protection of liberty and equal protection.

States that passed same-sex marriage laws had extended to those couples a dignity and status of immense importance. The federal government had no business taking away that status, he wrote.

“The avowed purpose and practical effect of the law (DOMA)… are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful.

“By… treating those persons as living in marriages less respected than others,” DOMA violates “basic due process and equal protection principles applicable to the Federal Government,” wrote Kennedy.

Gregory P. Magarian, a professor at Washington University Law School, said the “immediate effects of these decisions for same-sex couples will be profound.  The demise of DOMA means that the federal government must treat same-sex couples, legally married under state laws, just like opposite-sex married couples for purposes of federal benefits, tax status, etc.  The nullification of Proposition 8 appears to make marriage available to same-sex couples in the nation’s largest state, under a prior marriage law that Proposition 8 had purported to invalidate.”

State law, but which state?

It is uncertain how the decision will affect various situations in which couples marry in states that recognize same-sex marriage, such as Iowa, and then move to a state like Missouri that does not recognize it or to Illinois, which recognizes same-sex civil unions but not marriages. (Click here to see a map indicating the status of same-sex marriage in each state.)

Much will depend on how President Barack Obama, who sought today's decision, implements the necessary changes in regulations. An estimated 1,100 federal laws and regulations refer to marriage.

As Kennedy put it, “DOMA writes inequality in the entire U.S. Code.”

The law touches on all aspects of people’s lives denying couples federal medical benefits they otherwise would receive and even barring same-sex veterans from being buried together in veterans’ cemeteries.

Susan Appleton, an expert on family law at Washington University Law School, said that while the decision defers to state law, it “does not clearly say which state’s law.”  

In addition, different federal laws setting out benefits are inconsistent about which state counts when a couple is married in one and lives in another.  Some laws refer to the state of celebration, while others the state of residence. The Social Security law, for example refers to the state of domicile.

Appleton noted that “Congress could expand the number of gay couples entitled to federal benefits by making federal statutes refer to the place of celebration, thus encouraging couples in restrictive states to travel to permissive states to marry.”  

As for military families, it appears from a statement by Secretary of Defense Chuck Hagel that same-sex couples will immediately receive the same status as traditional married couples. “The Department of Defense intends to make the same benefits available to all military spouses -- regardless of sexual orientation -- as soon as possible,” he said.

A case or controversy?

The case before the court began with a tax case. Edith Windsor had legally married her long-time partner in Canada and they lived in New York, which had decided to recognize same-sex marriages.  When her partner died, Windsor had to pay a $363,000 inheritance tax that would not have applied to couples in a traditional marriage.  Under a traditional marriage, the spousal exemption would have wiped out the tax debt, but DOMA barred Windsor from claiming that exemption.

By 2011, the Obama administration decided to stop defending DOMA because the president thought the law was unconstitutional.  Still it appealed a decision in favor of Windsor to the Supreme Court to get a definitive ruling on DOMA.

The dissenters, led by a bitter Scalia, said that the court lacked jurisdiction to decide the case because Obama and Windsor were essentially on the same side of the dispute – both opposing DOMA.  The Constitution requires cases and controversies.

Kennedy pointed out, however, the House of Representatives presented a sharp legal argument in support of DOMA, so both sides of the controversy were presented. He added that if the court left it to the president to decide what was constitutional, the Supreme Court would lose its preeminence in deciding on the constitutionality of laws.

Scalia called Kennedy’s assertion “jaw-dropping. It is an assertion of judicial supremacy over the people’s representatives in Congress and the executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role. This image of the court would have been unrecognizable to those who wrote and ratified our national charter.”

He added, “We have never before agreed to speak – to say what he aw is – where there is no controversy before us.”

Judicial activism?

Bruce La Pierre, a constitutional law expert at Washington University Law School, said Scalia had a good point. “Putting aside some of his over-the-top comments,” wrote La Pierre, “there is a great deal of force to his argument that the court lacked jurisdiction and that the court reached to decide that DOMA is unconstitutional on the basis of some misplaced notion that it is the exclusive voice of constitutional interpretation.

“Going all the way back to the origins of judicial review in Marbury vs. Madison, there has been an understanding that the court is not the sole voice of constitutional interpretation,” he wrote. “There is a role for Congress and the president.”

For La Pierre, the more liberal wing of the court was as guilty of judicial activism on Wednesday in the DOMA decision as the more conservative wing had been on Tuesday in striking down the Voting Rights Act.

“Both decisions (for different reasons) are judicial activism,” he wrote. “The court should have stayed its hand and upheld the Voting Rights Act because that statute promoted democratic majoritarian decision making. The court should have stayed its hand in Windsor by denying jurisdiction." 

Magarian disagreed.

"In the wake of yesterday’s appalling voting rights decision, Shelby County vs. Holder, some 'centrist' commentators will criticize liberals who love Windsor but hate Shelby County, and conservatives who hold the opposite views, for hypocrisy."

But Magarian wrote that the two cases were entirely different.  "Shelby County killed a longstanding, effective protection of a core constitutional right to political participation, which Congress had carefully considered and repeatedly reauthorized. Windsor struck down a novel, contentious law, based on nothing more than bias and fear, which denied people a core constitutional right to equal liberty.  The two decisions could hardly be more different, and they warrant opposite responses."

Sloppy opinion?

La Pierre criticized Kennedy's opinion as “a sloppy mixture of federalism, due process, and equal protection. It is not easy to derive any principled rule of decision to be applied in later cases.”

That criticism is mild compared to the way that Scalia ridiculed Kennedy’s work, which he described as “nonspecific handwaving.” Scalia said that it was impossible to determine whether Kennedy was basing the decision on federalism, equal protection or a liberty interest protected by due process.

Kennedy began the opinion by stressing that the states are preeminent in the sphere of marriage.  But he said he wasn’t basing his decision on federalism.  Instead, he focused on the liberty and equal protection guaranteed by the Fifth Amendment.

Kennedy noted that DOMA was passed in 1996 when society had a completely different idea of marriage.  No state or nation recognized same-sex marriage then.

“Marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization,” Kennedy wrote. “That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight.”

State after state concluded, Kennedy wrote, that “same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons.

"This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the state worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.”

But Kennedy said that Congress in DOMA “uses this “state-defined class for the opposite purpose – to impose restrictions and disabilities." Kennedy said the “resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment.”

Scalia jumped on Kennedy’s reference to liberty.  He that the court protects liberties deeply rooted in the nation’s history and traditions.  To make that claim for same-sex marriage would be “quite absurd,” he wrote.

Kennedy stressed that DOMA “places same-sex couples in an unstable position of being in a second-tier marriage.... And it humiliates tens of thousands of children now being raised by same-sex couples."

Scalia has expressed his displeasure with his fellow Reagan nominee before. Kennedy has had a special role in cases involving gays and lesbians.  Exactly 10 years ago, Magarian pointed out, Kennedy wrote the decision outlawing homosexual sodomy laws, Lawrence vs. Texas.  A few years earlier Kennedy had written the Romer vs. Evans opinion striking down a Colorado constitutional provision that made gays vulnerable to housing discrimination.

Start of litigation

The court’s decisions are the beginning of litigation, not the end.

Mary Ziegler, a Saint Louis University law professor, said at the time of the oral argument in the Windsor case that striking down DOMA would create a legal mess.

"Such a decision would give equal marriage rights to those...states and the District of Columbia that have recognized same-sex marriage but would do nothing to help same-sex partners in states with civil unions or in states that bar same-sex marriage." 

What if a couple in Missouri or Illinois decided to go to Iowa or Massachusetts to get married legally? With DOMA gone, would they then qualify for the federal benefits that go to married couples?

Ziegler said that if they actually move and take up residence in Iowa or Massachusetts, they probably would qualify. “If not, then the question gets much harder. Absent a new federal law clarifying the answer to this, a post DOMA world will be a mess,” she wrote. "The issue would be which state's law applies."

Missouri would probably argue that its law applies and therefore the couple who went to Iowa to get married would not get federal benefits.

"Some scholars have argued that marriages can be valid for some purposes (like eligibility for federal benefits) and not for others (like state recognition)." she wrote. "The short answer is that the true answer is far from clear."

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.

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