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Victory in Both Marriage Equality Cases

The rulings in the two marriage equality cases came down very much like I expected, though with an unpredictable lineup in one of them. In United States v Windsor, the DOMA case, the court ruled 5-4 that Section 3 of DOMA is unconstitutional and that the federal government must grant full recognition to all same-sex marriages performed in states where they are legal. You can read that full ruling here. Kennedy wrote the opinion, joined by the four liberal justices on the court (Breyer, Sotomayor, Ginsburg and Kagan).

In Hollingsworth v Perry, the court ruled, also 5-4, that the petitioners (the party that appealed the case, which is the group that first proposed Prop 8) lacked standing to bring the appeal. I know, that’s really technical. So what does it actually mean? It appears to mean that the U.S. District Court ruling, which struck down Prop 8, stands and the government of California is enjoined from enforcing Prop 8 — which means same-sex marriage is now legal again in California. The lineup in this case is quite odd. The ruling was written by Chief Justice Roberts, joined by Scalia, Breyer, Kagan and Ginsburg. Sotomayor joined Alito, Kennedy and Thomas in dissent. Very strange lineup, but with two of the most conservative justices in the majority. You can read that full ruling here.

I’ll have a lot more on the fascinating details of both cases once I’ve had a chance to read through the rulings and the analysis of the experts throughout the day. But the bottom line is a victory for equality in both cases. We didn’t get everything we wanted — a broad equal protection argument or an explicit declaration that cases involving sexual orientation require heightened scrutiny (though there is some hint of the latter in the DOMA case) — but we got the right result. I don’t like the standing ruling in the Prop 8 case as a means of getting there (I generally loathe the court’s restrictive and artificial standing doctrine), but I can’t change that and I still like the result.

On Facebook, I originally said that the best part of this is, “Tony Perkins, Matt Barber, Joseph Farah and all the other bigoted assholes having their heads explode right now.” But I was wrong. The best part of this is the advancement of equality, however incremental. But that’s a nice side order of schadenfreude with some whipped cream on top.

Comments

  1. gshelley says

    From what I read, Roberts only joined the part of the dissent saying they shouldn’t have taken the case, not too surprising from his comments during the oral argument. Salia then went on to give his view on whether it was constitutional (and it occurs to me that although I am assuming he would somehow find it was, I didn’t read to make sure) and Roberts did not join that part.
    Which I guess means he felt so strongly on the standing issue, that he didn’t want to give away how he felt on the constitutionality
    From looking at the prop 8 ruling, it was all standing and none of them did the “what if” scenario

  2. slc1 says

    As I predicted last spring, the court punted on the Prop. 8 case. It appears to me that Roberts and Scalia were more afraid of setting a precedent that private parties could appeal District Court decisions on state issues when the appropriate state officials decline to do so (in this case then Attorney General Brown and then Governor Schwarzenegger) then they were of same sex marriage in California.

    However, several commentors have opined that, as Yogi Berra once said, it ain’t over until its over. There seems to be a question as to whether the District Court’s decision applies statewide, in Walker’s district only, or to the plaintiffs in the case only. I’m sure that the opposition will go full bore to claim that the ruling only applies to the plaintiffs in the case only, falling back on Walkers District only if they lose that one.

  3. gshelley says

    Ah, after reading a little more, he did have his own separate “yes it’s constitutional” which seems a little odd

  4. says

    From the ruling on DOMA:

    DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment…. Its unusual deviation from the tradition of recognizing and accepting state definitions of marriage operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of a class recognized and protected by state law. DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

    They fell short of reinforcing the 1968 decision of Loving v. Virginia, but I can live with this.

  5. acroyear says

    To get a decision like Loving, the specifics of Loving would have needed to be part of the challenge. The DOMA case (Windsor) specifically addressed the clause that requires the Federal Government to ignore state marriage licenses for gay people w/ regard to benefits and taxation (including inheritance, pensions, social security, and spousal benefits for federal employees, including the military).

    The Loving… decision rested on the issue that requires one state to acknowledge a marriage issued in another (or in Loving’s case, the District of Columbia). That specific issue has not been challenged yet. Someone would need to move and sue the state to get their marriage acknowledged in order to overturn at that level.

    There is precedent in the courts for acknowledging marriage, at least at the contractual level, in other states, such as that lesbian couple that had lawsuits in CT and VA over the kid and visitation rights – the courts upheld that you can’t move to a non-gay-marriage state in order to get your contractual marriage (and divorce) obligations from another state vacated. But that didn’t directly address DOMA, as they kept it strictly as a matter of jurisdiction: the same decision would have held if the couple was straight.

  6. John Pieret says

    For those who are interested, here is an article on the legal thicket still surrounding Prop 8:

    http://www.scotusblog.com/?p=161966

    Now, I suspect that, if the bigots fight a desperate rear guard campaign to make it hard for homosexuals to marry on the grounds of the limited jurisdiction of the district court, they will disgust so many people who didn’t care enough about the issue to vote on Prop 8 as to make it easy to pass a full gay marriage initiative in 2014.

  7. hoku says

    This is a good day for human rights. That said, I find the prop 8 ruling a little terrifying. The fact that the court ruled that a citizen initiative can be swept away because the local government refuses to defend it scares me a bit. How long do you think before that comes back to haunt us on something like environmental protection?

  8. jamessweet says

    I briefly read through the DOMA opinion, and here is my summary:

    Kennedy’s majority opinion: “The federal government cannot enact a law solely to demean a group that a State has sought to protect. That’s the obvious purpose of DOMA, so it dies.”

    Roberts’ dissenting opinion: “I agree with what Scalia and Alito wrote, but I don’t actually care that much and I just want to reiterate that this does NOT grant a constitutional right to same-sex marriage.”

    Scalia’s dissenting opinion, part 1: “ZOMG WHY ARE WE RULING ON THIS CASE?!? Judicial overreach, black-robed tyranny, blah blah blah.”

    Scalia’s dissention opinion, part 2: Interesting, actually — he essentially calls out the majority for a sneaky strategy, at to be honest I think he’s probably correct. They have explicitly stopped short of granting a constitutional right to same-sex marriage, but they have packed the opinion with prose that could be cited by lower courts to uphold such a right. So by the time the court gets asked again to decide on marriage equality, there will be a slew of lower court rulings, citing Windsor, ruling that it is a constitutionally protected right. Scalia is very angry about this, as you might imagine.

    Alito’s dissenting opinion: The dissent you were expecting. A bunch of prattle about how nobody knows what the consequences of same-sex marriage will be, how every Abrahamic religion historically decries it, etc., etc. Boring, redundant, and of little interest.

  9. says

    @acroyear #6 – Yeah, I should have remembered that. Appeals are allowed to rule ONLY on matters raised in the original trial, or the meta (evidence, procedures, questions of standing, etc.) of the original trial and previous appeals: they cannot raise new issues. Since Windsor never brought up Section 2 (which allows states to piss on the Full Faith and Credit clause with regards to same-sex marriage) or whether same-sex marriage bans are constitutional, there was never any chance that the Supreme Court would rule on them.

    My understanding, though, is that such cases are wending their way through the system even as we speak. With Section 3 struck down, it will be much more difficult to keep Section 2. Better still, the Windsor ruling made an excellent case denouncing discrimination against same-sex couple, which is now an official part of federal common law: when (not if) a Loving type case makes it to the Supreme Court, the Court would have to effectively reverse itself, which happens quite rarely.

  10. John Pieret says

    This just in on the head asploading front:

    WASHINGTON, D.C. – Family Research Council President Tony Perkins released the following statement in response to today’s U.S. Supreme Court rulings on marriage:

    “While we are disappointed in the Supreme Court’s decision to strike down part of the federal Defense of Marriage Act (DOMA), the court today did not impose the sweeping nationwide redefinition of natural marriage that was sought. Time is not on the side of those seeking to create same-sex ‘marriage.’ As the American people are given time to experience the actual consequences of redefining marriage, the public debate and opposition to the redefinition of natural marriage will undoubtedly intensify.

    http://www.frc.org/newsroom/supreme-courts-refusal-to-redefine-marriage-nationwide-allows-american-people-to-consider-consequences-of-redefinition

    Yeah, because the bigots haven’t been bigoty enough up to now and the trend in state laws and the polls have all been on your side.

  11. Michael Heath says

    jamessweet writes:

    I briefly read through the DOMA opinion, and here is my summary:
    [...]
    Alito’s dissenting opinion: The dissent you were expecting. A bunch of prattle about how nobody knows what the consequences of same-sex marriage will be, how every Abrahamic religion historically decries it, etc., etc. Boring, redundant, and of little interest.

    If this an accurate summary of J. Alito’s opinion, than his opinion serves as a perfect illustration of the type of judicial activism conservatives describe. Except of course Alito’s opinion serves to defend a conservative political position; which means it can’t be activism since activism only occurs when an opinion/ruling challenges a conservative position.

  12. says

    @John Pieret #11 – Never mind the fact that a “sweeping redefinition” was never a part of either marriage case, and thus the Supreme Court could not have issued such as ruling even if they wanted to.

  13. anubisprime says

    Well a muted, but probably the best that could be hoped for realistically, congrats to all affected…
    To be honest it was far better then I expected.
    Pretty much as foretold by the ones that know…dead DOMA and a fairly fumbled punt into the long grass for that pesky Prop 8 ruling.

    But it is a substantial advance for all its timidity and the exploding fundy noodles are a joy to behold!

    Now I suppose the bigoted ones have to reorganise to fight SSM on a case by case state by state basis…that should keep them off the grass and out from under for a while…because results are not likely to overwhelmingly favour them and they cannot really mount massive demonstrations state by state so pretty much a skeleton rag tag and bobtail effort in the courts where ever they be!

  14. jamessweet says

    Pretty much as foretold by the ones that know…dead DOMA and a fairly fumbled punt into the long grass for that pesky Prop 8 ruling.

    What I think went beyond what was foretold — and ironically, if you want a vivid description of it, read Part II of Scalia’s dissent — was the language used in striking down DOMA. It was not particularly narrow — it could have leaned heavily on things like federalism or rational basis, but it didn’t. And Scalia complained loudly about that!

    Here is a money quote — again, ironically from Scalia — that basically says what is so surprising (and encouraging) about the Windsor ruling:

    By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples… The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member of this institution.

    Essentially, the majority opinion gives serious ammo to lower courts to uphold a constitutional right to marriage equality. While the ruling itself was not a surprise, that component of it was. And it’s a good thing :)

  15. says

    From skimming Scalia’s section, he seems to argue that DOMA section 3 is constitutional because it fulfilled a legit government interest to create uniformity of law. It doesn’t seem to have actually done this, however, just created different uniformity problems. Even if it did serve a legit purpose, it’s constitutionally required to do this by the least restrictive means and I don’t see how this could be the case. The government could have recognized or not recognized SSM, depending on whether you current reside in a state that recognizes it, or just recognized any marriage that was performed where it was recognized, either of which would have had significantly less impact on the rights cited by the majority opinion.

  16. says

    The fuck? Scalia was in the majority? Was he just afraid that if the case wasn’t dismissed that gay rights could win an even bigger victory?

  17. says

    @JT #19 – Kennedy, Breyer, Sotomayor, Ginsburg and Kagan were the majority. Roberts, Scalia and Alito wrote dissents; Thomas signed on to … I think it was Alito’s.

  18. anubisprime says

    Yeah I cannot square Scalia with the majority in this case.
    De dude is senses something beyond dry legal analysis, is either law could have been upheld and successfully for future generations he would been the bunny with the perky ears, given his apparent attitude on things not conservative.

    So maybe there is summat’ else barrelling up the pipeline he and possibly Roberts is eye-balling and presumably that summat’ looks to be capable of generating a defining ruling on the whole question of SSM from SCOTUS.

    Dudes seems to want to be on the winning side of history maybe…but that does beggar the question why not the other dissenters on the bench?
    So maybe not so much summat’ this way comes…but a tacit revelation that conservative phrased case law does not help or offer succour to continued bigotry,..cos if it did I am fairly sure they would have grasped it like a drowning men in a shit storm.
    And maybe they had to much pride to copy Alito’s nonsense!

    Don’t know for sure but summat’ slowed their mustang down!

  19. anubisprime says

    Gregory in Seattle @ 20

    Ahh…sorry I thought Roberts and Scalia were in the majority on this one..Prop 8

    Chief Justice Roberts, joined by Scalia, Breyer, Kagan and Ginsburg. Sotomayor joined Alito, Kennedy and Thomas in dissent. Very strange lineup, but with two of the most conservative justices in the majority

  20. garnetstar says

    The most hilarious reaction yet:

    Michelle Bachman issued a statement of her opinions, which was as crazy as ever. Nancy Pelosi was later asked how she responded to that.

    She replied “Who cares?”

  21. D. C. Sessions says

    Dudes seems to want to be on the winning side of history maybe

    History can look out for itself.

    My read on these cases is based on Roberts’ age: he has two, maybe more than three decades left as Chief Justice. He doesn’t have to run for re-election and in particular he doesn’t have to face primary challenges. Which gives him the luxury of a longer planning horizon than any other prominent Republican politician.

    Long before he leaves the Court (almost certainly feet first) the PoG’s current fixation on LGBT issues is going to become a serious liability. The best thing he can do for the Party that he’s loyal to is to take those issues off the table except (as with Roe v Wade) as something to rile up the congregation — completely out of the hands of elected officials.

    The Voting Rights Act is the opposite. Without the ability to engage in massive election engineering, the Party is in deep shit for a long time. Especially at the Presidential level, where appointments will be made for the Associate Justices that he’ll be stuck with for the rest of his life — and those appointments are coming up soon.

    If Roberts is very, very lucky Ginsberg will hang on until President Cruz appoints her successor. More likely, Obama will appoint another moderate along the lines of Kagen and Sotomayor. All in all, a modest shift further right.

    After that, he’s looking at the odds. Kennedy and Scalia are both 77, followed by Breyer at 75. It’s a long gap to Thomas (65) and Alito (63). A Democratic President following Obama would potentially be in position to nominate four Justices, potentially flipping the Court to 6-3 (and I don’t think that Thomas looks all that healthy, young or not.)

    Roberts is not someone to look favorably on spending the rest of his life theoretically in charge of a Court where he’s that badly outnumbered. So expect to see more rulings like yesterday’s where he pulls a highly partisan (but canny) decision out of his ass if that’s what’s necessary to help the Republican Party hold onto power.

  22. garnetstar says

    A question: Scalia said that the court had no right to rule on “democratically-enacted legislation”.

    Is he really saying that the Supreme Court has no right to rule on the constitutionality of laws? What’s the “reasoning” behind this piece of logic?

    And, if he thinks that, why doesn’t he pack up and go home? Good riddance to bad rubbish.

  23. slc1 says

    As I commented on Singham’s blog, IMHO, Roberts and Scalia were more afraid of setting a precedent that private parties could appeal adverse decisions of Federal District Courts relative to state statutes if the state authorities declined then they were of same sex marriage in California.

  24. says

    @ garnetstar

    I was coming here to ask the same question. What exactly does Scalia think that SCOTUS’ job is? Cheerleader for the Chamber of Commerce? Anchor for the Republican Party? If he feels that way, then why didn’t he dissent on the Voting Rights Amendment case? That was “democratically-enacted legislation” too!

    What he really means is: “We should only overturn laws that *I* personally don’t like.” He’s just as bad a hypocrite as the others who decry “unelected judges” overturning the “will of the people.”

    Can we get him a Bryan Fisher award for a total lack of self-awareness?

  25. anubisprime says

    So from what I understand, in a layman sense, Scalia is a hoppin’ ‘n’ a frothin’ cos the the bases are loaded for future clarification from SCOTUS on SSM.

    The wording of the Prop 8 decision apparently throws a wink and a nod that, probably more by luck then design, there is no relevant and pertinent legal or statutory bar to ratify the right of SSM in constitutional terms not if but when SCOTUS are directly asked the direct question…

    Which of course pisses ol’ man Scalia & probably jolly Roberts off immensely.
    SCOTUS has no where to hide in the future, this might have been damage limitation to a degree but the bases are indeed loaded and a home run is guaranteed apparently!

    USA, apart from pesky details and armed with lower court rulings over the next couple of years, appears to have joined a modern, progressive and humane world…now about the death penalty?…

  26. Michael Heath says

    anubisprime writes:

    . . . the bases are loaded for future clarification from SCOTUS on SSM.

    The wording of the Prop 8 decision apparently throws a wink and a nod that, probably more by luck then design, there is no relevant and pertinent legal or statutory bar to ratify the right of SSM in constitutional terms not if but when SCOTUS are directly asked the direct question…

    [...]
    SCOTUS has no where to hide in the future, this might have been damage limitation to a degree but the bases are indeed loaded and a home run is guaranteed apparently!

    USA, apart from pesky details and armed with lower court rulings over the next couple of years, appears to have joined a modern, progressive and humane world . . .

    This is not true. A shift in the make-up in the court could easily allow Justice Alito’s dissenting opinion to become precedent, i.e., that there is no constitutionally protected right to gay marriage.

    We voters need to continue to be pragmatic when it comes to turning out to vote and who we support in those elections; all in order to minimize the number of conservatives appointed to the judiciary. While the country’s majority has obviously turned in support of gay marriage where the momentum is increasing, the powers in the GOP continue to be bigoted towards gays and know it’s an issue that continues to excite their base. Where this is a country where the GOP continues to hold enormous amounts of power given the reality that geography and the structure of our republic has conservative voters enjoying disproportionately high representation for each of their votes relative to non-conservative voters.

    So while the court’s razor thin margin was able to eke out a victory and add to the momentum, liberals still haven’t seemed to learn the lesson on how important it is to turn-out and vote along with energetically and competently advancing the cause of equal voting rights. In this realm GOP gerrymandering at the state level coupled to obstructionism at the federal level continues to provide the GOP with disproportionate power they’re more than happy to wield at the expense of Americans outside their conservative Christian and plutocratic tribes.

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