DOMA and Prop 8, finding the light

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Writer   |   June 30, 2013 at 3:30 AM   |   0 comments

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WASHINGTON, June 30 (UPI) -- The U.S. Supreme Court's landmark decision last week striking down the federal Defense of Marriage Act, and its companion ruling that in effect upheld the outlawing of California's Proposition 8, ignited a national conversation -- where does same-sex marriage go from here? For that matter, where does marriage go from here?

Despite the triumph of the winners in the cases, and the dismay of the losers, the rulings, both 5-4, can only be understood by reading the opinions, not the headlines.

One thing the rulings didn't do was recognize a constitutional right to same-sex marriage.

The Prop 8 ruling didn't even involve the issue of same-sex marriage though it clearly benefited same-sex couples in California.

And the states that now ban same-sex marriage were not compelled to change their tune.

The DOMA ruling didn't address those states, as Chief Justice John Roberts pointed out in his dissent: "The court does not have before it, and the logic of its [majority] opinion does not decide, the distinct question [of] whether the states, in the exercise of their 'historic and essential authority to define the marital relation,' may continue to utilize the traditional definition of marriage."

The DOMA ruling only affects legally married same-sex couples.

Justice Anthony Kennedy's majority opinion in the DOMA case was no surprise.

His majority opinions in 1996's Romer vs. Evans struck down a Colorado law singling out gays and lesbians for disparate treatment; and in 2003's Texas vs. Lawrence struck down the Lone Star State's anti-sodomy law -- Kennedy essentially told the government to get out of the bedroom.

Last week, on the final day of the term, Kennedy's opinion said DOMA violated the equal protection guarantee of the Fifth Amendment.

Justice Antonin Scalia was so incensed he read his dissent from the bench -- a sign of extreme displeasure -- and accused the court majority of delusions of grandeur.

Not all of DOMA, enacted in 1996, was under attack in the case or outlawed.

Section 2 says no state is required "to give effect to any public act, record, or judicial proceeding of another state that treats a relationship between two persons of the same sex as a marriage under its laws."

In other words, a same-sex marriage in Maryland, among the states that permit such unions, would not necessarily have to be recognized in any other state. That section still stands.

DOMA's Section 3, which was targeted, says, "In determining the meaning of any act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

The Obama administration said Section 3 had practical and harmful effects on same-sex couples.

"Although Section 3 of DOMA does not purport to invalidate same-sex marriages in those states that permit them," the administration told the Supreme Court in a brief, "it excludes such marriages from recognition for purposes of more than 1,000 federal statutes and programs whose administration turns in part on individuals' marital status. ... Section 3 of DOMA thus denies to legally married same-sex couples many substantial benefits otherwise available to legally married opposite-sex couples under federal employment, immigration, public health and welfare, tax and other laws."

The DOMA case heard by the Supreme Court involved Edith Schlain Windsor, an 84-year-old New Yorker. In 2007 in Canada, she legally married her same-sex partner of 40 years, Thea Spyer. When Spyer died in 2009 of multiple sclerosis, she left her estate to Windsor.

As executor of Spyer's estate, Windsor paid approximately $363,000 in federal estate taxes, but filed a refund claim under a federal statute that says "property that passes from a decedent to a surviving spouse may generally pass free of federal estate taxes."

The Internal Revenue Service denied the claim on the ground that Windsor is not a "spouse" within the meaning of DOMA's Section 3 and thus not a "surviving spouse" within the meaning of the statute.

Windsor filed suit in Manhattan challenging Section 3's constitutionality, saying it violated the equal protection guarantee of the Fifth Amendment. The Obama administration, the lower courts and eventually the U.S. Supreme Court majority, agreed with her.

Since the administration bailed out, lawyers representing the House Republican leadership defended the act and took it to the high court.

In his majority opinion -- joined by the four liberal justices to make up the five-member majority -- Kennedy pointed out New York is among the 12 states (and the nation's capital) that now permit same-sex marriage.

"The state's power in defining the marital relation is of central relevance in this case quite apart from principles of federalism," Kennedy said. "Here the state's decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the state used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage."

He added later: "DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the federal government. ... The Constitution's guarantee of equality 'must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot' justify disparate treatment of that group. ...

"DOMA cannot survive under these principles."

All four of the remaining conservative justices dissented, including the chief justice

"I agree with Justice Scalia that this court lacks jurisdiction to review the decisions of the courts below" in the DOMA case, Roberts said. "On the merits of the constitutional dispute the court decides to decide, I also agree with Justice Scalia that Congress acted constitutionally in passing the Defense of Marriage Act. Interests in uniformity and stability amply justified Congress's decision to retain the definition of marriage that, at that point [1996], had been adopted by every state in our nation, and every nation in the world.

"The majority sees a more sinister motive, pointing out that the federal government has generally [though not uniformly] deferred to state definitions of marriage in the past," Roberts said. "That is true, of course, but none of those prior state-by-state variations had involved differences over something -- as the majority puts it -- 'thought of by most people as essential to the very definition of [marriage] and to its role and function throughout the history of civilization.' That the federal government treated this fundamental question differently than it treated variations over consanguinity or minimum age is hardly surprising -- and hardly enough to support a conclusion that the 'principal purpose,' of the 342 representatives and 85 senators who voted for it, and the president who signed it, was a bare desire to harm.

"Nor do the snippets of legislative history and the banal title of the act to which the majority points suffice to make such a showing. At least without some more convincing evidence that the act's principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry."

Scalia was far more scathing in his dissent.

"This case is about power in several respects," Scalia wrote. "It is about the power of our people to govern themselves, and the power of this court to pronounce the law. Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The court's errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

"The court is eager -- hungry -- to tell everyone its view of the legal question at the heart of this case," he said. "Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges' intrusion into their lives. They gave judges, in Article III [of the Constitution], only the 'judicial power,' a power to decide not abstract questions but real, concrete 'cases' and 'controversies.' Yet the plaintiff [Windsor] and the government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?

"The answer lies at the heart of the jurisdictional portion of today's opinion," Scalia said, "where a single sentence lays bare the majority's vision of our role. The court [majority] says that we have the power to decide this case because if we did not, then our 'primary role in determining the constitutionality of a law' [at least one that 'has inflicted real injury on a plaintiff'] would 'become only secondary to the president's.'

"But wait, the reader wonders -- Windsor won below, and so cured her injury, and the president was glad to see it," he added. "True, says the majority, but judicial review must march on regardless, lest we 'undermine the clear dictate of the separation-of-powers principle that when an act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.'

"That is 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."

In contrast to the DOMA decision, the Prop 8 ruling really did not deal with the issue of same-sex marriage at all.

A lower-court order prevented Prop 8, which restricted California marriage to a man and a woman, from being implemented. The Supreme Court majority, led by Chief Justice Roberts, said the challengers did not have "standing" to appeal the order -- could not show they were injured by the lower-court ruling. The five-member majority crossed ideological lines.

California voters approved Proposition 8, the California Marriage Protection Act, in 2008 with more than 52 percent of the vote, but not before thousands of same-sex couples had been married in the state. The proposition overturned an earlier ruling by the California Supreme Court, which itself had overturned an earlier but similar proposition as unconstitutional.

Opponents went to federal court where a judge declared Prop 8 unconstitutional, and blocked it. A three-judge appeals court panel agreed 2-1.

Protect Marriage -- its sponsor is a state non-profit, California Renewal -- defended the law since California officials refused to do so, and told the U.S. Supreme Court the appeals court misinterpreted high court precedent.

But Robert's majority opinion said the challengers did not have standing to appeal the U.S. District Court judge's order.

"Article III of the Constitution confines the judicial power of federal courts to deciding actual 'cases' or 'controversies,'" Roberts said. "One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so. In other words, the litigant must seek a remedy for a personal and tangible harm."

The challengers "had not been ordered [by the judge] to do or refrain from doing anything," Roberts said. "Their only interest was to vindicate the constitutional validity of a generally applicable California law. As this court has repeatedly held, such a 'generalized grievance' -- no matter how sincere -- is insufficient to confer standing."

Roberts was joined in his opinion by Scalia and liberal Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. Conservatives Kennedy, Clarence Thomas and Samuel Alito, and liberal Justice Sonia Sotomayor, dissented.

Immediately after the ruling, California officials said same-sex marriage will resume in the state, but will require just one more federal court action.

In a letter to the state's counties, Tony Agurto -- assistant deputy director for health information and strategic planning in the State Registrar's Office -- said state Attorney General Kamala Harris had advised the registrar's office the judge's injunction against Prop 8's implementation now applies statewide.

"The effect of the district court's injunction is that same-sex couples will once again be allowed to marry in California," Agurto's letter to county offices said. "But they will not be able to marry until the 9th [U.S.] Circuit [Court of Appeals] issues a further order dissolving a stay of the injunction that has been in place throughout the appeal process."

Agurto said that should take at least a month. But the appeals court dissolved the stay Friday.

The appeals court affirmed the judge's action, but stayed its effects until the case was resolved in the Supreme Court.

Agurto said county clerks and recorders should not issue marriage licenses to same-sex couples until the appeals court acts.

California Gov. Jerry Brown also ordered the counties to resume same-sex marriage once the appeals court acts.

"In light of the decision, I have directed the California Department of Public Health to advise the state's counties that they must begin issuing marriage licenses to same-sex couples in California as soon as the 9th Circuit confirms the stay is lifted," Brown said in a statement.

Despite the statements of California officials, the non-partisan Pew Forum on Religion & Public life predicted multiple suits would be filed asking whether the judge's order actually applies statewide.

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