Lerner Family Associate Dean for Public Interest and Public Service Law Alan Morrison discusses the rulings.
By Brittney Dunkins
A court majority of 5-4 ruled that the Defense of Marriage Act (DOMA) in the case of United States v. Windsor is unconstitutional, effectively providing rights under all federal laws to legally married same-sex couples.
That decision was followed by a 5-4 vote leaving in place a trial court decision striking down Proposition 8 in the case of Hollingsworth v. Perry, a ban on gay marriage in California that narrowly passed as a ballot measure in 2010 and was invalidated in the state’s Supreme Court in 2011.
The U.S. Supreme Court held that the proponents of Prop 8 did not have the right to appeal, which means that the appeals court decision is of no effect, and the trial judge’s ruling may be of limited effect.
The decisions offered a leap forward for gay rights activists in the debate over marriage rights for same-sex couples, but, at the same time with the Prop 8 case, pushed the issue back down to the state level.
Lerner Family Associate Dean for Public Interest and Public Service Law Alan Morrison, a professorial lecturer at GW and expert in the field, spoke with GW Today about the rulings and their implications.
Q: What does the DOMA decision mean?
A: The federal government must treat same-sex marriages the same as opposite-sex marriages under the law, both for rights and obligations of the married parties. The decision also says that the prior limit on marriage to opposite-sex couples is of no effect, so that same-sex married couples who previously were denied or did not apply for the benefits of marriage, including tax benefits, Social Security, health coverage and more, may now seek them, assuming the time to do so has not passed.
Q: What was the basis of the ruling?
A: U.S. Supreme Court Justice Anthony Kennedy placed heavy reliance on the fact that Congress chose not to follow state law as it usually does regarding marriage and concluded that it did so for impermissible reasons, mainly a dislike of same-sex couples.
For these reasons, including the anti-gay animus of the Congress that passed DOMA in 1996, and others, he found that the differing treatment of same- and opposite-sex married couples violated the Equal Protection clause of the 14th Amendment to the U.S. Constitution.
Q: Who will the ruling apply to and where?
A: It will clearly apply to a same-sex couple who is legally married in the state where they live. It will also apply to a same-sex couple who were married in a state that allows such marriages and move to a state that recognizes such marriages if performed elsewhere, even if that state does not allow such marriages to be performed in that state.
And finally, and this is the most open question, it is unclear if federal law will treat as married a same-sex couple that was married in a state permitting such marriages, but moves to a state that does not allow such marriages to be performed there and does not, for state law purposes, recognize such marriages. President Obama has some discretion, under at least some if not most federal laws, to answer that question, and I think it likely he will answer it by directing that same-sex married couples be given the widest range of rights.
Q: When will the ruling take effect, or begin to show tangible results for those it affects?
A: The ruling takes effect immediately, but it will take some time for federal agencies to take actions to implement it.
Q: Explain the ruling in the Prop 8 appeals case, which applies to the standing of private parties to defend California’s ban on gay marriage in federal court, since the state refused to appeal the case after a loss at state trial.
A: At its simplest level, the court majority said only state officials can defend state laws in federal court and the proponents, whatever their status under California law, are not agents of the state and cannot appeal adverse federal court decisions.
Q: What does the decision to uphold the lower court’s ruling and dismiss the case mean?
A: The easy part is that the four plaintiffs can get married in California. What happens next depends on what state officials do. They are not bound to follow the district judge’s opinion to reinstate same-sex marriage but the attorney general and the governor have already announced that they abide by that ruling. That may not end the debate because they may get sued for not following California law. Or, on the other hand, some county clerks may refuse to issue same-sex marriage licenses and get sued for not doing so. There are probably other possibilities, but they are even harder to anticipate.
Q: When will same-sex couples in California be able to get married?
A: It is impossible to tell. For the four plaintiffs, the answer is soon, probably within a month or so, although a court clerk could issue such a license even sooner.
Q: What do the court’s rulings on gay marriage say about its ability to exercise power, and what does it say about its conservative or liberal leanings?
A: Only the DOMA case reached the merits and so I will answer the question based on that decision. The four so-called liberal justices, plus Justice Kennedy, seem willing to strike down discriminatory federal laws, like DOMA, but the day before, Justice Kennedy joined the conservatives in striking down a portion of the federal Voting Rights Act.
Every justice has the ability to exercise the power to strike down federal laws, and the issue is their willingness to do so in different circumstances. No one was willing even to opine on the constitutionality of the California law, but it is a safe bet that the dissenters in DOMA would surely have voted to uphold Prop 8 if they had gotten to the merits, which Justice Kennedy went to lengths to point out they were not doing in DOMA.
Q: How will these rulings at a federal level affect state level cases on same-sex marriage?
A: Probably not very much because the justifications for DOMA are much narrower in the minds of most people than are those for state bans on same-sex marriage.
Q: With increasing high-profile political support for gay marriage from the president and the Clintons, and social support in terms of a nationwide shift toward accepting same-sex marriage and the increasing power of gay rights as a social movement, do you predict a future ruling that might federally recognize same-sex marriage?
A: My first prediction is that the eight or so states, like California, that have domestic partnerships or as they are called elsewhere, civil unions, will likely change quite soon to same-sex marriage in order to enable their citizens to obtain federal benefits (few people focus on burdens, but there are many). After that, the change will be much slower because somewhere in the vicinity of 25 states ban same-sex marriages in their state constitutions. I imagine that there will be more suits like Prop 8, in other states, but how they will fare is very hard to tell.