Without reservation, today is a great day for gay rights. But after reading a hundred articles today, there’s one thing I’ve read and I can’t stomach. All of the LGBT blogs that find it utterly necessary to run their “nippy nippy nah nah” point of view.
Let’s face it: that gets tiring. And it’s hardly news worthy. Ditto for the endless coverage of what NOM, AFA and all the others think about their loss that was handed to them. Flat out and simple on this point: I didn’t give a fuck what NOM thought yesterday about gay marriage, and I will care even less tomorrow.
In some ways, it was déjà vu all over again. Just like last year, when it upheld the individual mandate of the Affordable Care Act, the Court saved the biggest cases of the Term – this time, challenges to California’s ban on same-sex marriage and the federal Defense of Marriage Act – for last. Just like last year, there were long lines for seats in the courtroom; this time, they formed more than eighteen hours before the Justices would take the bench. And just like last year, there was pandemonium outside (although, unlike last year, there were no belly dancers to be found).
But there was one key difference: there were no major surprises today. As many Court watchers had predicted after the oral argument, Justice Anthony Kennedy joined the Court’s four more liberal Justices to strike down a key provision of the Defense of Marriage Act, a 1996 law that defined “marriage,” for purposes of more than a thousand federal laws, as limited to a union between a man and a woman. So same-sex couples that are legally married will be entitled to the same treatment under federal law as their opposite-sex counterparts.
But the Court did not decide whether there is a constitutional right to same-sex marriage, instead leaving that for another day. The Court also left the other question before it – whether Proposition 8, California’s ban on same-sex marriage, is constitutional – on the table. Instead, it ruled, the sponsors of Proposition 8 lack the legal right to defend the law on appeal. Let’s talk about today’s rulings in Plain English.
With the Court having announced yesterday that it would issue the three remaining decisions – including two on same-sex marriage today – the sense of drama at the Court was high today. The Justices did not make us wait: the first opinion of the day came in United States v. Windsor, the challenge to DOMA. But in yet another parallel to the historic health-care decision, the Court had to tackle a potentially thorny issue before moving on to the question whether DOMA is unconstitutional: whether it had the authority to hear the case at all, given that Windsor won in the lower court and the United States agrees that DOMA is unconstitutional. The Court ruled that it could, explaining that even if the federal government was not defending DOMA, it still has a stake in the case because the lower court ordered it to refund plaintiff Edith Windsor the $363,000 in estate taxes that she paid because the federal government did not recognize her marriage to her same-sex spouse.
Nor did “prudential considerations” – whether it is a good idea for the Court to review Windsor’s challenge, even if it has the authority to do so – bar the Court from moving on to the constitutionality of DOMA. The five Justices reasoned that, although it would no doubt eventually get a chance to review a case without this case’s procedural complications, it might take a while, during which lots of people would spend a lot of money on lawsuits challenging the law.
Cutting to the marquee issue – whether DOMA is constitutional – the Court acknowledged that Congress can pass laws that affect marriage in limited ways, but in its view DOMA goes much further than that: it applies to over a thousand federal laws and all federal regulations. (In this week’s version of “Supreme Court Justices: They’re Just Like Us,” the version of the opinion that was distributed to reporters misspells “statutes” as “statues,” suggesting that perhaps someone was up late last night finishing up the draft.) But states, rather than the federal government, have historically been responsible for regulating and defining “marriage” – establishing their own (and sometimes different) minimum ages for marriage, for example. In recent years, the Court explained, some states have decided to allow same-sex couples to marry, giving them the same protection and dignity that opposite-sex couples get from marriage. But despite the traditional role of the states in regulating marriage, the Court reasoned, DOMA discriminates against same-sex couples by preventing the federal government from recognizing their marriages, and it does so to express disapproval of state-sanctioned same-sex marriage.
As a result of today’s decision, same-sex couples who are legally married must now be treated the same under federal law as married opposite-sex couples. That conclusion (and the steps that the Court took to get there) drew the ire of the Court’s four more conservative Justices – Chief Justice John Roberts and Justices Scalia, Thomas, and Alito – who filed three separate dissenting opinions totaling nearly fifty pages.
Justice Antonin Scalia read from the bench to demonstrate his severe disagreement with the ruling. The opinion is an “instant classic” that uses Scalia-isms like “jaw-dropping” and “rootless and shifting” to describe the Court’s rationales; at one point, he indicates that “[t]he sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on substantive-due-process grounds, and perhaps with some amorphous federalism component playing a role).” Although the four dissenters did not completely agree on everything, they were united in their belief that DOMA is constitutional.
The Court announces opinions in order of reverse seniority – beginning with Justice Kagan, the most junior Justice, if she has an opinion, and continuing through to the Chief Justice, who is automatically the Court’s most senior Justice even if five Justices have actually been on the Court longer. Today that meant that the DOMA decision was followed by the opinion in Sekhar v. United States, a relatively obscure criminal case, which was announced by Justice Scalia (who apologized for the distraction).
The Court’s nod to tradition also meant that everyone in the Courtroom had to wait several minutes before learning what the media was already reporting, based on information already provided by the dissenting opinions in DOMA: the Court would not rule on the merits of the challenge to Proposition 8 because an unusual line-up of five Justices – the Chief Justice, joined by Justices Scalia, Ginsburg, Breyer, and Kagan – agreed that the sponsors of the law lacked a legal right to defend the initiative after a federal district court struck it down. Although that result was not the one that two same-sex couples had most hoped for when they filed their challenge to California’s ban on same-sex marriage four years ago, it had seemed the most likely outcome after the oral argument in late March.
For a lawsuit to proceed in federal court, both sides must have (among other things) “standing” – a legal term for a real and specific injury that can be cured by a court decision in your favor. In this case, the two same-sex couples won in the federal trial court, and the state officials who would have otherwise enforced the law didn’t appeal that decision because they agreed that Prop 8 was unconstitutional. Only the sponsors of the initiative wanted to appeal – but the district court hadn’t ordered them to do (or not to do) anything, so they “had no ‘direct stake’ in the outcome of their appeal.” Simply disliking the law, the Court explained, is not enough to create “standing.” Nor does California law justify allowing the sponsors to participate in the case: California election laws don’t give them a special role in enforcing Proposition 8, and a ruling by the California Supreme Court that state law allowed the sponsors to appear in court on behalf of the state doesn’t help them here. The Supreme Court, it explained, “ha[s] never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to.” Thus, it continued, it “decline[d] to do so for the first time here.”
At the oral argument in the spring, Justice Anthony Kennedy had suggested that the Court might have made a mistake in deciding to review Proposition 8, and that the Court should instead let the political process work out when and whether same-sex marriage should be permitted. But there was no sign of those misgivings today. To the contrary, in an opinion that was joined by the stereotype-busting line-up of Justices Thomas, Alito, and Sotomayor, Kennedy acknowledged that the Court might want to be “cautious” before weighing in on such a controversial and evolving subject as same-sex marriage. But that is no excuse, he argued, for reaching a bad decision on the standing issue. And echoing the states’ rights theme woven into his opinion for the Court in Windsor, he scolded the majority for not taking into account how California laws, and in particular the state’s system for voter initiatives, work – much less the effect that its ruling will have on the twenty-six other states with similar initiative systems.
So where does the California ban on same-sex marriage go from here? The state’s governor has already ordered state officials to begin issuing marriage licenses to same-sex couples. But before it can do that, the U.S. Court of Appeals for the Ninth Circuit has to lift a year-old order that kept its decision striking down the ban from going into effect while the Supreme Court reviewed the case. That probably will take a little less than a month. In the meantime, look for an uptick in the California wedding industry sometime soon . . . .