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Yesterday, the media was abuzz with news of a great victory for gay rights in this country. Just 24 hours previous, they were predicting the racial voting rights apocalypse in response to another decision. It is important to note what did NOT happen in the same sex marriage cases. Justice Scalia’s rather lengthy dissent pretty much summarizes some of the bizarre inconsistencies in the majority opinion of Kennedy. Unlike some posters at this site, I am not of the opinion that Kennedy was a “Reagan mistake” or the like. He is considered, by most, the swing vote on the Court and from everything I have read and heard, relishes that role. That is why we will not see a Kennedy retirement any time soon. That being said, he does sometimes narrowly read the law which inevitably steers him in the direction where he ultimately arrives. Which is why Scalia’s scathing dissent makes all the more sense.
Windsor, the petitioner in this state, won her case in the lower courts plain and simple. The only thing that kept this case “alive” was the Obama administration’s decision not to support the constitutionality of DOMA, but to continue to enforce it. Hence, although Ms. Windsor was entitled to some $300,000 plus interest, the government refused to refund the money. There was another option for Windsor- go back to court and have that court issue an order to pay her. If the government still refused, then they would have to defend the underlying law which they asserted was the reason not to pay her- DOMA. So from the beginning, this is nothing but a contrived case.
If the courts find a law to be unconstitutional, the Executive branch has two options- defend it or change it. Looking at the number of cases where the United States is a party or one of its Executive branch agencies, one clearly sees that they have no objections to defending laws. Obama administration of existing immigration laws, for example, are regularly defended although there is public disagreement with these laws. In this case, the Obama administration chose neither option. As Scalia properly notes, the legislative fix should always be the preferred method and cited the recently passed Repeal of Don’t Ask, Don’t Tell as but one example. There, the elected officials of this country fixed what they felt to be an unfair policy or law. Sure, there was debate and heated rhetoric on both sides, but that is the by-product of the political process. There always was a good compromise solution to the DOMA question which would have bolstered the sovereignty of states rights. That solution would have been to simply, for federal purposes, recognize legitimate state marriage licenses regardless of that state’s definition of marriage. However, that would have undercut one of Scalia’s arguments in defense of DOMA.
Throughout Kennedy’s opinion, there is the insinuation if not outright assertion that DOMA was passed in 1996 to basically denigrate gays. However, even an undisciplined and cursory reading of the history of DOMA in such banal locales as Wikipedia will show that it was in response to a case out of Hawaii. It is certainly true that the federal definition of “marriage” carries with it very real tangible, economic consequences, and for federal purposes DOMA sought to instill consistency knowing that same sex marriage, given the Hawaii decision, could become a greater reality. Kennedy, however, suggests there was some sinister motive, a very real animus against homosexuals based on outdated preconceptions. That is akin to saying that 85 senators, 342 Congressmen and President Clinton were out to legislatively bash gays, just as Ted Kennedy asserted in 1996.
However, DOMA in no way, shape or form disallowed any state from allowing gay marriage. It merely stated that for federal purposes, marriage was defined as being between members of the opposite sex. That is it…period. But why would Congress decide on that definition and not just recognize any marriage as defined by the state in which the marriage license was issued? Besides consistency, history. It is an unmistakable fact that marriage- and one cannot think of too many gay marriages before 1990- between a man and woman had achieved a very legitimate purpose in society- the rearing of children. That is not to say that a same sex couple cannot raise an adoptive child in a loving and caring home, but they certainly cannot “beget” children. Also being a relatively recent societal development, the best one can say is that the jury is still out even in this area. There are studies which indicate that children from same sex couples are not “deviates” or the like and that at best that they are no better or worse than children from opposite sex parents. Even in studies from countries that have had gay marriage longer than the United States, the general conclusions are of the “needs more study” or “the jury is out” nature. Yet, there are innumerable studies indicating that children of opposite sex couples where there is a mother and father- the traditional set up from time immemorial- had advanced society as a whole. This not some grand social experiment. The bottom line is that concerns over same sex marriage in 1996, like now, were and are very real and not motivated by an anti-gay animus.
Kennedy’s decision simply opens up the law to further litigation. Section 2 of DOMA was not at issue in this case. That is the part that allows a state to allow or disallow gay marriage. If a state approves gay marriage, another state that does not recognize same sex marriage is under no obligation to recognize that marriage for state benefit purposes. Here, an interesting legal conundrum occurs. As both the majority and dissenting opinions point out (and which Scalia chides the majority in classic Scalia terms), marriage qualifications have always been the province of the states. So what happens if a gay couple is married in New York, a state that approves gay marriage, and moves to Kansas, a state that defines marriage in the traditional sense? The Windsor decision allows federal benefits to follow that couple, but they would not be entitled to Kansas state benefits. Some may argue that the Privileges and Immunities Clause would be violated in this scenario. However, Congress has in the past and in other contexts carved out exceptions to that Clause and, by inference, that is exactly what DOMA does. For example, until recently Delaware recognized civil unions, but not gay marriage. However, unlike other states, they recognized civil unions and gay marriages performed in other states while neighboring New Jersey, which also has civil unions, does not recognize gay marriages performed in other states. DOMA gives states these options and that option is, in effect, the exception to the Privileges and Immunities Clause.
In conclusion regarding the DOMA case, four points need to be made. First, there was no approval of gay marriage on a national basis as some media outlets are proclaiming. Second, in an effort to avoid making a broad proclamation, Kennedy’s decision is a little convoluted and certainly leaves this issue open to further litigation. And unfortunately, the standard now established for analyzing these cases will make it a little tougher for opponents of gay marriage to prevail, although not impossible. Third, the Windsor case was a strange one from the beginning in that it was one where the petitioner actually won, but an Obama administration legal sleight of hand brought this case before the Supreme Court. And finally, the language of Kennedy’s majority decision is inaccurate at some points and certainly ignorant of the history and motivation of DOMA.
In the Proposition 8 case, Roberts’ decision was presaged in his dissent in the Windsor case. Before it was announced, most Court watchers realized where it was going to land. In a truly strange alignment of the Justices, they basically ruled that the lower courts erred in even taking the appeal because Perry, a proponent of Proposition 8, lacked standing in the first place. He stated that the Court never allowed such a suit in the past and they would not this time. In effect, they were relying on precedent on the standing issue rather than even reaching the merits of the case: whether a state can pass a law or state constitutional amendment through legislative or voter-initiated means banning gay marriage. Of course, the practical effect is to allow the lower court decisions to stand striking down Proposition 8. California will have same sex marriage soon.
However, there are some problems with this decision also. As Scalia’s dissent in Windsor points out, there are other ways to address this issue rather than running to the courts and taking a case to the Supreme Court. Here, the lower District Court’s decision is based on an extensive trial record where both sides forcefully and fully argued their sides. In a previous article many moons ago, I was taken to task over my analysis of Judge Walker’s initial decision that sent this whole process into motion, as being well-reasoned and well-written although we may all disagree with the practical final result. Because they ruled that the proponents lacked standing- a question the California Supreme Court punted to the Ninth Circuit- the results of this decision are applicable only to California. What is disturbing about this decision in the larger sense is the practical effects of voter-initiated referendums going forward. The Court basically said that if the state government or its officials decided not to defend a duly passed law or referendum because they disagreed with it for whatever reason, then so be it. This turns a republican democracy on its head.
Governors and state attorney generals, like their counterparts at the federal level, are expected to faithfully “execute” the laws of their states. Granted, with a change in administrations, the incoming one may disagree with certain laws or policies previously passed. But, that is what the political process is for and is clearly spelled out in constitutions- state and federal. In explicit terms, the Court stated that the decision does not address the question of whether states have the right to bar same sex marriage. Ironically, in their last conference of the term to be held today, there are two cases that address exactly that question- one from Nevada and one from Arizona. Whether they have the stomach to take one or both of these cases next term is another question altogether. But, the bigger point is that when a new administration disagrees with a previously passed law or state constitutional amendment, the usual preferred method is to legislatively change that law. Nothing, but nothing prevents voters in California from putting an initiative on the ballot to, in effect, overturn Proposition 8. If the political will is there, states can put the question before the voters, or consider it in their legislatures, every year if they so wish. For example, in my home state of New Jersey, the question of legalizing gay marriage has been presented to Governor Christie who vetoed the legislation. The New Jersey legislature could have over-ridden that veto, but they did not indicating that the political will for gay marriage is not sufficiently strong enough yet in a rather liberal state. Nor was it California when 53% of voters approved Proposition 8.
Going forward, Roberts tends to presage future cases through his opinions. The most recent example was the Court’s decision in Northwest Austin in a previous term and the Shelby County case this term. In his Perry decision this term, he copied some of the exact federalism language that Kennedy used in his decision in the DOMA case. His almost verbatim copying of Kennedy’s remarks are telegraphing his future position using, ironically, Kennedy’s decision in Windsor as precedent as a justification for allowing states to define marriage as they see fit. There may be federal benefits arising from the issuance of a marriage license, but there is no federal marriage license. That is, as Kennedy and Roberts note, the exclusive province of the states. It would truly be ironic if Kennedy’s words which admittedly were a victory for gay rights activists come back to haunt him in the future.
The bottom line is this: First, as far as federal benefits go, same sex couples will receive the same as opposite sex married couples. From those fiscal hawks out there, the cost to the government will be minimal from everything I have read. In fact, according to a 2004 CBO report, it would result in a net $100 million in revenue for the federal government mainly through savings in the Medicare, Medicaid, and Supplemental Security Income areas. However, that does not apply to state level benefits since Section 2 was not challenged in the DOMA case.
Second, the Proposition 8 case is not binding on the entire country. Technically speaking, it is only applicable to Los Angeles and Alameda counties in California but for all intents and purposes, just the state of California (which is why the Arizona and Nevada cases are now before the Supreme Court for consideration since the Proposition 8 case is not even binding on the Ninth Circuit which includes Nevada and Arizona). Hence, this was a state-specific decision.
Third, it calls into question the efficacy and legitimacy of voter-initiated referendum results and leaves those results subject to the whim of the occupant of the Governor’s office at any given time in any state. Of course, the courts can strike down laws or even state constitutional amendments that run afoul of the United States Constitution. But in these decisions, the Court refrained from and clearly did not establish- in language explicitly clear- that gay couples have a right to marry. As stated previously, Roberts’ decision in Perry and Scalia’s dissent in Windsor lead one to believe that at least four members of this Court would rather leave that question to the political process. The problem, however, is getting Kennedy to eat his federalism words and put his vote where his pen was in Windsor.
Fourth, in the time from the Court accepting these cases to the present, five states have approved gay marriage. Today, more than 30% of the United States population is in states that have approved gay marriage. They are: Washington, California (no, but yes), Minnesota, Iowa, all of New England, Maryland and Delaware. Another six states recognize civil unions- basically marriage without the license. That brings the total to 41% of the United States population. Naturally,there will always be pockets of resistance, but should the minority foist their view upon the majority by judicial fiat in these areas? These citizens have expressed their view either directly or through their elected officials on the subject which, to this writer at least, is the definition of a republican representative democracy. To judicially step in and declare a federal right to same sex marriage would clearly go against these voter decisions which both sides agree is clearly the province of the states. Maine is the perfect example where they voted down gay marriage and then approved it two years later. One could only speculate, but if a referendum was placed on the California ballot today to allow gay marriage- that is, rescind Proposition 8- it would most likely easily pass. What a legislature or voters do, they can undo as times and attitudes change. There may very well be a day when 48 out of 50 states approve gay marriage. But, wouldn’t it be better if the people decided that issue rather than 5 Supreme Court justices?