The Supreme Court and Same-sex Marriage

In Windsor, in an opinion by Justice Anthony Kennedy, the Court held that DOMA's definition of marriage “violates basic due process and equal protection principles applicable to the Federal Government.” Id., 2013 WL 3196928, at *15. The Court went on to describe the discriminatory effect of the law:

DOMA's unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question 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. ' DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal.

Id. at *15-*16.

Justice Kennedy noted that DOMA affected more than 1,000 statutes and federal regulations. He also discussed some of the various ways ' “from the mundane to the profound” ' in which same-sex spouses were burdened by DOMA, including the inability of same-sex spouses to obtain health benefits and the prohibition of same-sex spouses to be buried with each other in veterans' cemeteries. Id. at *16. And, as the decision pointed out, DOMA also raised the cost of health care for families by taxing health benefits provided by employers to their workers' same-sex spouses, and it denied or reduced benefits allowed to families upon the loss of a spouse and parent, “benefits that are an integral part of family security.” Id. at *17.

The majority held that the federal statute is in violation of the Fifth Amendment, inasmuch as “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others[,] ' treating [same-sex spouses] as living in marriages less respected than others. Id. at *18. Declaring that the law deprived the “liberty of the person” guaranteed by the Fifth Amendment to those “who are joined in same-sex marriages made lawful by the State[,]” the majority made no broader ruling on whether a state may constitutionally ban same-sex marriage. On the contrary, the majority concluded by expressly confining its holding to situations where same-sex partners are in marriages legal under their state's law. Id.

There were three separate dissenting opinions in Windsor. Justice Antonin Scalia wrote the longest of the three, finding fault with both the majority opinion and with the separate dissent by Justice Samuel Alito. The first part of Justice Scalia's analysis focused on the lack of standing of the United States, so that there was no case or controversy before the Court. See, e.g., id. at *22 (Scalia, J., dissenting). On the merits, Justice Scalia wrote that DOMA, clarifying what constitutes marriage for purposes of federal law, was “a classic purpose for a definitional [statutory] provision.” Id. at *30. Throughout his opinion, Justice Scalia wrote scathingly of the majority's motives and reasoning, beginning with an accusation that the majority's opinion “aggrandizes” the power of the Court to pronounce the law, “with the predictable consequence of diminishing” the power of the people to govern themselves. Id. at *20.'

But some of Justice Scalia's strongest words were reserved for what he saw as the majority's overreaching ruling on the merits. For instance, he found the majority's justifications for its ruling “rootless and shifting” and derisively dismissed the majority's stated limitation on its holding as a “naked declaration” not to be trusted. Id. at *27, *31. On this point, Justice Scalia did not mince words, noting:

It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here ' when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court's holding is its sense of what it can get away with.

Id. at *31.

In a short dissent, Chief Justice John Roberts agreed with Justice Scalia that the Court lacked jurisdiction to decide the case, and also agreed that Congress had acted constitutionally in passing DOMA. Id. at *18 (Roberts, C.J., dissenting). But principally, the Chief Justice focused on the limits of the majority's ruling, noting that while the Court “may in the future have to resolve challenges to state marriage definitions affecting same-sex couples[,] [t]hat issue ' is not before us in this case ' .” Id. at *20.

Justice Alito, in his dissent, wrote that the petitioner, the United States, had no standing. But he also concluded that the so-called Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG), appointed by House Republican leadership to defend DOMA, did have standing in the case. Id. at *34 (Alito, J., dissenting). Turning to a discussion of the merits, Justice Alito expressed his view that Congress had not overstepped constitutional bounds in creating a federal law definition of marriage to include only heterosexual unions.

Noting that the Constitution is silent on the issue of same-sex marriage, Justice Alito urged that any change on a question as fundamental as the definition of marriage “should be made by the people through their elected officials.” Id. at *34. Notably, Justice Alito “wholeheartedly agree[d]” with the majority in one respect, i.e., “to the extent that the Court takes the position that the question of same-sex marriage should be resolved primarily at the state level ' .” Id. at *41.'

The Proponents of Proposition 8 Have No Standing'

Chief Justice Roberts delivered the opinion of the Court in Hollingsworth. As the majority noted, at issue was the constitutionality of the ballot initiative known as Proposition 8, which had amended the California Constitution “to provide that '[o]nly marriage between a man and a woman is valid or recognized in'” that state. Id., 2013 WL 3196927, at *4. After a bench trial in which state officials refused to defend the initiative, a federal district court had held that Proposition 8 was unconstitutional; the state officials declined to take an appeal. The petitioners before the Supreme Court, the original proponents of Proposition 8, had been permitted by the trial court to intervene in the case and defend the initiative. They then took the appeal to the Ninth Circuit, which upheld the district court ruling, and petitioned the Supreme Court for certiorari. The Court granted the petition, but the majority in Hollingsworth found that petitioners had no standing and that neither the Court nor the Ninth Circuit had authority to decide the case on the merits. As a result, the Court vacated the judgment of the Ninth Circuit and remanded the case to that court with instructions to dismiss the appeal. Id. at *14.

In the majority's opinion, the Chief Justice noted that a litigant, to have standing, must seek relief for an injury that affects the litigant in a “personal and individual way” and must possess a direct stake in the outcome of the case. Id. at *7. But the majority found that the petitioners before the Court had no direct stake in the outcome of their appeal, but rather a “generalized grievance” to vindicate the constitutionality of the ballot initiative. The Court noted it had repeatedly held that such a generalized grievance is insufficient to confer standing: “A litigant 'raising only a generally available grievance about government ' claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large ' does not state an Article III case or controversy.” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74 (1992)).

The Chief Justice went on to analyze and reject the argument that petitioners had been authorized to defend Proposition 8 under California law, concluding that whether a party has standing in federal court is a question of federal, and not state, law. As he noted: “[N]o matter its reasons, the fact that a State thinks a private party should have standing to seek relief for a generalized grievance cannot override our settled law to the contrary.” Hollingsworth, 2013 WL 3196927, at *13. Finally, echoing the concerns he had expressed during oral argument, the Chief Justice concluded his opinion for the Court with these words: “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.” Id. at *14.'

Justice Kennedy, who wrote the majority opinion in Windsor striking down DOMA as unconstitutional, wrote the dissent in the Proposition 8 case. In his opinion, Justice Kennedy took issue with the majority, urging that California had the right to empower the petitioners to defend one of its state laws in federal court. He noted that the California Supreme Court had held that the state's Election Code and Constitution afforded the petitioners, the original “proponents [of Proposition 8] 'the authority ' to assert the state's interest in the validity of the initiative' when State officials decline to do so.” Id. at *16 (Kennedy, J., dissenting). Accordingly, Justice Kennedy concluded, the “State Supreme Court's definition of proponents' powers is binding on this Court. And that definition is fully sufficient to establish the standing and adversity that are requisites for justiciability under Article III of the United States Constitution.” Id. at *14.”

The 5-4 decision of the Court, by ordering the Ninth Circuit to dismiss the appeal in the case, has let stand the district court's original ruling in the case, striking down Proposition 8 as unconstitutional. Thus, though the majority in the minds of many ' including the four-Justice minority ' had sidestepped a ruling on the merits in the case, the ruling will result in the resumption of legal same-sex marriages in California.

Conclusion

In both Windsor and Hollingsworth, the Supreme Court gave immediate victories to proponents of same-sex marriage, but in neither case did it rule on the broad issue of whether there is a federal constitutional right of marriage equality for same-sex couples. The likely long-term effect of the Court's rulings on same-sex marriage, however, was anticipated by Justice Scalia in his dissent in Windsor and was echoed (but without Justice Scalia's disparagement) by David Boies, one of the lead attorneys for the same-sex plaintiffs in the Proposition 8 case, immediately after the rulings. Boies explained that the petitioners' lack of standing in Hollingsworth meant that the Court could not reach the merits in that case. But he added that what the Justices had said in the DOMA case, where they did reach the merits, demonstrates that when the right case finally does come to the Supreme Court on the merits, marriage equality will be the law throughout the land.

Frank Gulino, a member of the ABA's Council of Appellate Lawyers, is an Associate Professor of Legal Writing at the Maurice A. Deane School of Law at Hofstra University in Hempstead, NY.

In the last day of its October 2012 Term, the U.S. Supreme Court handed down two historic decisions that were immediately hailed as victories for supporters of same-sex marriage. In one of the cases, United States v. Windsor, No. 12-307, 2013 WL 3196928 (U.S. 6/26/13), the Court had been asked to rule upon the constitutionality of the Defense of Marriage Act (DOMA), a federal statute that limited marriage to heterosexual unions of one man and one woman for purposes of federal law. In a 5-4 decision, the Court in Windsor held that DOMA's definition of marriage was violative of the constitutional guarantees of due process and equal protection. As a result, in states where same-sex marriage is legal, same-sex spouses would be able to enjoy the rights and privileges granted to heterosexual married couples under federal law.

In the other case, Hollingsworth v. Perry, No. 12-144, 2013 WL 3196927 (U.S. 6/26/13), at issue was the constitutionality of Proposition 8, a 2008 California ballot initiative that sought to amend that state's Constitution to define marriage as the union of a man and a woman. In that case, also in a 5-4 decision, the Court held that it did not have jurisdiction to determine the case on the merits. The decision let stand a lower court ruling that had struck down Proposition 8 as unconstitutional, paving the way for same-sex couples to marry under California law.

DOMA Violates the Right of Same-sex Spouses to Equal Protection

In Windsor, in an opinion by Justice Anthony Kennedy, the Court held that DOMA's definition of marriage “violates basic due process and equal protection principles applicable to the Federal Government.” Id., 2013 WL 3196928, at *15. The Court went on to describe the discriminatory effect of the law:

DOMA's unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question 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. ' DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal.

Id. at *15-*16.

Justice Kennedy noted that DOMA affected more than 1,000 statutes and federal regulations. He also discussed some of the various ways ' “from the mundane to the profound” ' in which same-sex spouses were burdened by DOMA, including the inability of same-sex spouses to obtain health benefits and the prohibition of same-sex spouses to be buried with each other in veterans' cemeteries. Id. at *16. And, as the decision pointed out, DOMA also raised the cost of health care for families by taxing health benefits provided by employers to their workers' same-sex spouses, and it denied or reduced benefits allowed to families upon the loss of a spouse and parent, “benefits that are an integral part of family security.” Id. at *17.

The majority held that the federal statute is in violation of the Fifth Amendment, inasmuch as “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others[,] ' treating [same-sex spouses] as living in marriages less respected than others. Id. at *18. Declaring that the law deprived the “liberty of the person” guaranteed by the Fifth Amendment to those “who are joined in same-sex marriages made lawful by the State[,]” the majority made no broader ruling on whether a state may constitutionally ban same-sex marriage. On the contrary, the majority concluded by expressly confining its holding to situations where same-sex partners are in marriages legal under their state's law. Id.

There were three separate dissenting opinions in Windsor. Justice Antonin Scalia wrote the longest of the three, finding fault with both the majority opinion and with the separate dissent by Justice Samuel Alito. The first part of Justice Scalia's analysis focused on the lack of standing of the United States, so that there was no case or controversy before the Court. See, e.g., id. at *22 (Scalia, J., dissenting). On the merits, Justice Scalia wrote that DOMA, clarifying what constitutes marriage for purposes of federal law, was “a classic purpose for a definitional [statutory] provision.” Id. at *30. Throughout his opinion, Justice Scalia wrote scathingly of the majority's motives and reasoning, beginning with an accusation that the majority's opinion “aggrandizes” the power of the Court to pronounce the law, “with the predictable consequence of diminishing” the power of the people to govern themselves. Id. at *20.'

But some of Justice Scalia's strongest words were reserved for what he saw as the majority's overreaching ruling on the merits. For instance, he found the majority's justifications for its ruling “rootless and shifting” and derisively dismissed the majority's stated limitation on its holding as a “naked declaration” not to be trusted. Id. at *27, *31. On this point, Justice Scalia did not mince words, noting:

It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here ' when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court's holding is its sense of what it can get away with.

Id. at *31.

In a short dissent, Chief Justice John Roberts agreed with Justice Scalia that the Court lacked jurisdiction to decide the case, and also agreed that Congress had acted constitutionally in passing DOMA. Id. at *18 (Roberts, C.J., dissenting). But principally, the Chief Justice focused on the limits of the majority's ruling, noting that while the Court “may in the future have to resolve challenges to state marriage definitions affecting same-sex couples[,] [t]hat issue ' is not before us in this case ' .” Id. at *20.

Justice Alito, in his dissent, wrote that the petitioner, the United States, had no standing. But he also concluded that the so-called Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG), appointed by House Republican leadership to defend DOMA, did have standing in the case. Id. at *34 (Alito, J., dissenting). Turning to a discussion of the merits, Justice Alito expressed his view that Congress had not overstepped constitutional bounds in creating a federal law definition of marriage to include only heterosexual unions.

Noting that the Constitution is silent on the issue of same-sex marriage, Justice Alito urged that any change on a question as fundamental as the definition of marriage “should be made by the people through their elected officials.” Id. at *34. Notably, Justice Alito “wholeheartedly agree[d]” with the majority in one respect, i.e., “to the extent that the Court takes the position that the question of same-sex marriage should be resolved primarily at the state level ' .” Id. at *41.'

The Proponents of Proposition 8 Have No Standing'

Chief Justice Roberts delivered the opinion of the Court in Hollingsworth. As the majority noted, at issue was the constitutionality of the ballot initiative known as Proposition 8, which had amended the California Constitution “to provide that '[o]nly marriage between a man and a woman is valid or recognized in'” that state. Id., 2013 WL 3196927, at *4. After a bench trial in which state officials refused to defend the initiative, a federal district court had held that Proposition 8 was unconstitutional; the state officials declined to take an appeal. The petitioners before the Supreme Court, the original proponents of Proposition 8, had been permitted by the trial court to intervene in the case and defend the initiative. They then took the appeal to the Ninth Circuit, which upheld the district court ruling, and petitioned the Supreme Court for certiorari. The Court granted the petition, but the majority in Hollingsworth found that petitioners had no standing and that neither the Court nor the Ninth Circuit had authority to decide the case on the merits. As a result, the Court vacated the judgment of the Ninth Circuit and remanded the case to that court with instructions to dismiss the appeal. Id. at *14.

In the majority's opinion, the Chief Justice noted that a litigant, to have standing, must seek relief for an injury that affects the litigant in a “personal and individual way” and must possess a direct stake in the outcome of the case. Id. at *7. But the majority found that the petitioners before the Court had no direct stake in the outcome of their appeal, but rather a “generalized grievance” to vindicate the constitutionality of the ballot initiative. The Court noted it had repeatedly held that such a generalized grievance is insufficient to confer standing: “A litigant 'raising only a generally available grievance about government ' claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large ' does not state an Article III case or controversy.” Id . (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 573-74 (1992)).

The Chief Justice went on to analyze and reject the argument that petitioners had been authorized to defend Proposition 8 under California law, concluding that whether a party has standing in federal court is a question of federal, and not state, law. As he noted: “[N]o matter its reasons, the fact that a State thinks a private party should have standing to seek relief for a generalized grievance cannot override our settled law to the contrary.” Hollingsworth, 2013 WL 3196927, at *13. Finally, echoing the concerns he had expressed during oral argument, the Chief Justice concluded his opinion for the Court with these words: “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.” Id. at *14.'

Justice Kennedy, who wrote the majority opinion in Windsor striking down DOMA as unconstitutional, wrote the dissent in the Proposition 8 case. In his opinion, Justice Kennedy took issue with the majority, urging that California had the right to empower the petitioners to defend one of its state laws in federal court. He noted that the California Supreme Court had held that the state's Election Code and Constitution afforded the petitioners, the original “proponents [of Proposition 8] 'the authority ' to assert the state's interest in the validity of the initiative' when State officials decline to do so.” Id. at *16 (Kennedy, J., dissenting). Accordingly, Justice Kennedy concluded, the “State Supreme Court's definition of proponents' powers is binding on this Court. And that definition is fully sufficient to establish the standing and adversity that are requisites for justiciability under Article III of the United States Constitution.” Id. at *14.”

The 5-4 decision of the Court, by ordering the Ninth Circuit to dismiss the appeal in the case, has let stand the district court's original ruling in the case, striking down Proposition 8 as unconstitutional. Thus, though the majority in the minds of many ' including the four-Justice minority ' had sidestepped a ruling on the merits in the case, the ruling will result in the resumption of legal same-sex marriages in California.

Conclusion

In both Windsor and Hollingsworth, the Supreme Court gave immediate victories to proponents of same-sex marriage, but in neither case did it rule on the broad issue of whether there is a federal constitutional right of marriage equality for same-sex couples. The likely long-term effect of the Court's rulings on same-sex marriage, however, was anticipated by Justice Scalia in his dissent in Windsor and was echoed (but without Justice Scalia's disparagement) by David Boies, one of the lead attorneys for the same-sex plaintiffs in the Proposition 8 case, immediately after the rulings. Boies explained that the petitioners' lack of standing in Hollingsworth meant that the Court could not reach the merits in that case. But he added that what the Justices had said in the DOMA case, where they did reach the merits, demonstrates that when the right case finally does come to the Supreme Court on the merits, marriage equality will be the law throughout the land.

Frank Gulino, a member of the ABA's Council of Appellate Lawyers, is an Associate Professor of Legal Writing at the Maurice A. Deane School of Law at Hofstra University in Hempstead, NY.