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On
Dec. 7, 2012, the U.S. Supreme Court stepped squarely into the same-sex marriage
debate when it agreed to review two important lower court decisions involving gay
marriage. The first case arises from an appeals court ruling striking down the
federal Defense of Marriage Act (DOMA), the 1996 law that bars the federal
government from recognizing same-sex marriages. The second case also involves a
federal appeals court decision – this one striking down Proposition 8, a ballot
initiative approved by California voters in 2008 that amends the state
constitution to ban gay marriage.
People
have been fighting over same-sex marriage in courtrooms around the country for
nearly 20 years. Until recently, however, most of the action has been in state
courts – from Hawaii and California to Maryland and New Jersey. (See Overview
of Same-Sex Marriage in the United States.) The most significant state court
decision came in 2003, when the Massachusetts Supreme Judicial Court (the
state’s highest court) ruled that the state’s constitution granted gays and
lesbians the right to marry.
The
U.S. Supreme Court’s decision to take the DOMA case, Windsor v. United States, and the Proposition 8 case, Hollingsworth v. Perry, shifts the
judicial focus from state to federal courts. However, it is far from certain that
the justices will settle the most important legal question in the same-sex
marriage debate: Does the U.S. Constitution guarantee same-sex couples the
right to marry?
The
Windsor case primarily involves a dispute over
discrimination against a minority group – gays and lesbians – and does not
directly address the question of whether the Constitution requires states to
allow same-sex marriage. The Proposition 8 case, in contrast, involves a
decision by a state (in this case, California) to prohibit gays and lesbians
from marrying and so might, in theory, provide the court with a better vehicle
for ruling on whether the constitution requires the states to recognize same-sex
marriage. However, even in Perry, the
high court could end up side-stepping the most important constitutional
questions and rule more narrowly to uphold or strike down California’s ban on
gay marriage.
Challenging the Defense of
Marriage Act
The
federal Defense of Marriage Act was signed into law by President Bill Clinton
on Sept. 21, 1996, after passing in both houses of Congress by wide margins. The
law contains two major provisions: The first (Section 2 of the law) gives
states the authority to refuse to recognize same-sex marriages that have been legally
performed in other states. Normally, under the “full faith and credit” clause
of the U.S. Constitution, states are required to recognize the “public acts …
and judicial proceedings” that have taken place in other states. Section 2 of
DOMA specifies that this obligation does not apply to same-sex marriages.
The
other important provision of DOMA (Section 3) defines marriage as “a legal union
between one man and one woman.” Under this provision, the federal government does
not recognize same-sex marriage for any purpose, including the filing of
federal taxes and the distribution of benefits such as Social Security.
The
federal Defense of Marriage Act has been challenged a number of times in
federal courts. The Windsor case is
one of the more recent and more important of these decisions. Indeed, in Windsor the 2nd Circuit U.S. Court of Appeals
not only upheld a lower court ruling striking down DOMA but also granted gays and lesbians a higher level of
constitutional protection than any other federal appeals courts previously had
done. Specifically, the appeals court in Windsor
ruled that a statute that discriminates against homosexuals is unconstitutional
unless the government can show that it in fact advances an important public
policy purpose – a judicial benchmark known as a “standard of review.”
In the past, federal courts have used a standard of review in
gay rights cases that is very deferential to the government. This standard,
known as “rational basis,” allows a discriminatory statute to remain in force
if the government can show that it has any reasonable or legitimate basis for
enacting and enforcing it. Such a test is relatively easy to meet since most
laws have at least some rationale behind them.
But after deciding that DOMA discriminated against gays and
lesbians, the 2nd Circuit did not turn to the rational-basis standard in
determining whether the statute could still remain in force. Instead, the panel
determined that it would use a tougher standard of review – known as
“intermediate scrutiny” – because, it argued, gays and lesbians had long been
the objects of significant discrimination and prejudice. Therefore, the court
said, they deserve a heightened form of constitutional protection. Intermediate
scrutiny requires that the government show more than a rational or legitimate
basis for a discriminatory statute.
Instead, the government must show that the law in question substantially
advances an important state interest, such as protecting public safety or
genuinely protecting the integrity of family life. In Windsor, the 2nd
circuit determined that the defenders of DOMA could not make such a showing and
thus ruled that the law was unconstitutional. Specifically, the 2nd Circuit
ruled that the law violated the U.S. Constitution’s guarantees of equal
protection.
Even though intermediate scrutiny is a tougher standard of
review than had previously been employed in gay rights cases, it does not offer
the highest level of constitutional protection for groups that have
traditionally suffered from discrimination. In the past, courts have ruled that
laws discriminating on the basis of race or national origin must meet an even
higher standard – known as “strict scrutiny” – in order to avoid being struck
down. Still, Windsor represents the first time a federal appeals court
has used a standard higher than the rational basis one in a case involving gays
and lesbians. If the Supreme Court adopts the intermediate review
standard in Windsor, it could throw
doubt on the laws in 38 states that limit marriage to opposite-sex couples.
States involved in legal challenges would have to come up with a very
persuasive justification for their laws preventing same-sex couples from
marrying and would have to show that these laws advance important state
interests.
In
deciding to hear Windsor, the court
bypassed two other important DOMA cases before it: Massachusetts v. U.S. Department of Health and Human Services and Gill v. Office of Personnel Management. Like
Windsor, both cases also involve
challenges to Section 3 of the DOMA statute – the language prohibiting the
federal government from recognizing same-sex marriages. And in both cases, a
federal district court ruled that DOMA was unconstitutional, but for different
reasons. In Gill, which involved a
challenge by an individual, the district court ruled that DOMA violated the
Constitution’s guarantees of equal protection, just as a district court had
done in Windsor. The Massachusetts case, however, was brought by Massachusetts state officials, who argued
that Congress had overstepped its authority by barring federal agencies from
acknowledging same-sex marriages legally performed in their state. Because the
plaintiff in this case was a state rather than a private individual or group, the
district court framed its decision differently, pointing out that marriage has
always been the domain of states rather than the federal government. Thus, the
court said, DOMA “intrudes” on this core area of state sovereignty, violating
the U.S. Constitution’s 10th Amendment, which reserves all powers not
specifically given to the federal government to the states or the people. Both
rulings were upheld by the 1st Circuit Court of Appeals on May 31, 2012. The
outcome in these two cases will remain on hold pending the Supreme Court’s
decision in Windsor.
Proposition
8 and the Battle in California
The
second case the Supreme Court will consider involves a challenge to Proposition
8, the ballot measure approved by California voters in November 2008 that
amended the state constitution to ban gay marriage. The drive to adopt
Proposition 8 was prompted by a May 2008 California Supreme Court decision that
held that state laws limiting marriage to opposite-sex couples violate the
state constitution. By amending the state constitution to prohibit same-sex
marriage, Proposition 8 effectively overturned the court’s ruling.
After
Proposition 8 was unsuccessfully challenged in state courts on procedural
grounds, same-sex marriage supporters initiated legal action in federal court.
They argued that the state’s ban on gay marriage violated several parts of the
U.S. Constitution, most notably the guarantee of equal protection under the
law.
The
decision to file suit in federal court was not universally supported in the gay-rights
community. Many advocates of gay marriage were concerned that such a lawsuit
was premature. Specifically, they worried that it could quickly end up in the
Supreme Court, which then might rule that the U.S. Constitution does not give
same-sex couples the right to marry. Such a ruling against gay marriage could
close off for decades the possibility of a later high court ruling in favor of same-sex
marriage. But the high-profile attorneys who signed on to represent the
same-sex couples who were suing the state – longtime Democratic lawyer David Boies
and former Solicitor General Theodore B. Olson, who served in the George W.
Bush administration – argued that there was a good chance of success because of
previous Supreme Court rulings. Specifically, they pointed to the court’s 1996 decision
in Romer v. Evans, in which the
justices struck down Colorado’s nullification of anti-discrimination protections
for gays and lesbians, and the court’s 2003 decision in Lawrence v. Texas, which involved a challenge to Texas’ anti-sodomy
law. In its ruling in Lawrence, the Supreme
Court said that states cannot regulate consensual sexual relations between adults.
In
August 2010, after a highly publicized trial in which state officials eschewed
their traditional role as defenders of challenged laws and left Proposition 8
to be defended by private supporters of the measure, a federal district court judge
in San Francisco, Vaughn Walker, struck down the constitutional ban. Although a
voter-approved referendum (such as Proposition 8) deserves great deference, Walker
wrote, the ban on same-sex marriage blatantly discriminates against a certain
group of citizens – gays and lesbians – and violates their fundamental right to
marry and their equal protection rights, both of which are guaranteed under the
U.S. Constitution. Like the judge in Gill,
Walker said he looked for a legitimate reason that could justify upholding Proposition
8 in spite of these constitutional concerns. But Walker found that gay-marriage opponents
could not produce a convincing reason or “rational basis” to justify the same-sex
marriage ban. In Walker’s view, Proposition 8 had been prompted by people’s moral
disapproval of homosexuality, and that alone, he concluded, was not enough to
justify the enactment of a blatantly discriminatory law.
On
appeal, the 9th Circuit upheld Walker’s decision. But the appeals court ruling
rested on much narrower grounds than Walker’s decision. Indeed, the appeals
court ruled that it did not need to consider the major constitutional questions
addressed by Walker, such as whether the U.S. Constitution’s equal protection clause
gives same-sex couples the right to marry. Instead, its decision rested on the
fact that same-sex couples in California had been granted the right to marry by
the state’s Supreme Court in May 2008 – only to have that right revoked by the
adoption of Proposition 8 less than six months later. Based on the Supreme
Court’s 1996 ruling in Romer v. Evans,
the appeals court said that singling out one class of people (gays and
lesbians) and taking away an “existing right” without any rational basis was
itself unconstitutional.1
Hence, the court said, no other analysis was needed to strike down Proposition
8.
Many
legal analysts speculate that by affirming the lower court’s decision on narrow
rather than broad constitutional grounds, the appeals court was trying to
insulate the ruling from being overturned or even considered by the Supreme
Court. They argued that the appeals court, by limiting the scope of the
decision, had made the stakes in this case much smaller for the Supreme Court. If
the high court either affirmed the 9th Circuit’s ruling or refused to rule on
the merits, same-sex marriage would be legal in California but not nationwide –
or even in the other eight Western states that also are within the 9th Circuit’s
jurisdiction. And because the appeals court’s ruling relied on special
circumstances (the state granting and then taking back marital rights for
same-sex couples), a decision by the Supreme Court to affirm it might not
significantly advance or set back the argument for making same-sex marriage a
constitutional right.
Looking
Ahead
The
Supreme Court’s decision to review the Windsor
and Perry cases means that they likely
will be argued in March 2013 and decided by the end of June 2013. The court’s decision to
hear Windsor was not surprising. Because
the case involves a federal law that applies nationwide, the high court would
want to avoid having it operate differently from state to state. If the court
had not agreed to hear Windsor or the
other DOMA cases such as Gill and had
let their rulings stand, legally married same-sex couples who reside in New
York, Connecticut and Vermont (the states within the 2nd Circuit’s
jurisdiction) or Massachusetts, New Hampshire, Rhode Island and Maine (the
state’s within the 1st Circuit) would be treated as married for purposes of
federal law. At the same time, married same-sex couples living in Iowa, Maryland,
Washington or any other states outside the 1st and 2nd Circuits’ jurisdictions would
not be treated as married under federal law, because DOMA would still apply in
those states.
The
court’s decision to review Windsor also
may have been influenced by the fact that it involves the relatively narrow
issue of whether the federal government must respect each state’s definition of
marriage, rather than the broader question of whether all states must allow
same-sex marriage. In addition, Windsor gives
the court an opportunity – one it may decide not to exercise – to address the
question of what is the appropriate standard of review in cases involving
discrimination against gays and lesbians.
Meanwhile,
the decision to review Perry, the
Proposition 8 case, gives the court three choices. First, since the State of
California is not defending Proposition 8 in federal courts, leaving the job to
private parties, the court has agreed to consider whether these private groups
have a legitimate stake in the appeal of the case – a concept known as
standing. If the court dismisses the case for lack of standing, it would mean
that either the 9th Circuit Court of Appeals decision or the earlier district
court decision would stand. In either case, Proposition 8 would be invalid and
same-sex marriage would again be legal in California. Second, the high court
might decide the case on the narrow grounds on which the 9th Circuit ruled
against Proposition 8 -- that is, that it involved taking away the pre-existing
marriage rights of same sex couples and that such an act is unconstitutional. (Standing is also an issue in the Windsor case because the Obama administration refused to defend DOMA and members of the House of Representatives have stepped in to do so.)
A third possibility
is that the high court could decide to use Perry
as a vehicle to tackle the broader constitutional question. This could have
significant consequences for both sides in the debate. An unfavorable outcome
for gay-marriage supporters on the broad question of whether the Constitution
guarantees same-sex couples the right to marry would be difficult to overturn
in the future. By contrast, a ruling that declares a constitutional right to gay
marriage would immediately require all states to permit same-sex marriage on
precisely the same terms as they permit opposite-sex marriage. Such a sweeping
ruling would almost certainly, at least in the short term, provoke a
significant political response in states where large majorities are opposed to
same-sex marriage. Indeed, the justices cannot help but be aware of the bitter,
ongoing protests about Roe v. Wade,
the 1973 decision legalizing abortion in all states. Some justices might be
reluctant to invite a similar response to a ruling granting all same-sex
couples the right to marry.
This report was written by David
Masci, senior researcher, Pew Research Center’s Forum on Religion & Public
Life, and Ira C. Lupu, F. Elwood and Eleanor Davis Professor of Law Emeritus at
The George Washington University.
Footnotes:
1 In
Romer
v. Evans, the
Supreme Court struck down an amendment to the Colorado Constitution (approved
by the state's voters in 1992) that nullified state and local
anti-discrimination protections for gays and lesbians and prohibited passage of
any such anti-discrimination laws in the future. The high court said the
Colorado amendment was incompatible with the U.S. Constitution’s 14th Amendment
guarantee of equal protection under the law. (return to text)
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