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What are the Courts Doing with Gay Marriage? An Update

February 18, 2014Filed Under: Court Cases, Current Events

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Fresh out of Kentucky this week is another federal district court ruling striking down state law which the courts say discriminates against homosexual Americans. What is astounding to some is that this most recent ruling is not even getting front billing on most national news providers. That is likely because it is nothing terribly new. Similar cases from all over the country have been handed down even in some of the US’s most conservative states, like Utah and Oklahoma (see Kitchen v. Herbert and Bishop v. Oklahoma respectively). This kind of stuff gets lawyers excited, not because of their political or moral views one way or the other, but when federal judges start striking down state laws and even portions of state constitutions, we know SCOTUS is going to get involved, and the Supreme Court is not going to be able to resist ruling on this issue for much longer.

What Brought us Here?

The storm of federal suits against alleged same-sex discrimination stems out of two SCOTUS decisions, Windsor and Perry (for an in-depth description of these cases, see https://www.oksmithlaw.com/what-did-the-supreme-court-do-when-they-struck-down-doma/). Last year the Supreme Court struck down key portions of the Defense of Marriage Act (Windsor) and simultaneously upheld a California Supreme Court decision that overturned an amendment to the California Constitution prohibiting same-sex marriage (Perry). In Windsor, the Court ruled that DOMA discriminates against same-sex couples, and that the 5th Amendment Due Process Clause (which applies only to the Federal Government) prohibits such discrimination. In Perry,  the Supreme Court upheld the California Supreme Court’s ruling that the 14th Amendment (which applies to the states) prohibits same-sex discrimination, but did so on standing grounds (i.e. the plaintiffs did not have standing to appeal the case in the first place, so SCOTUS could not rule on the merits of the case). To put it in colloquial terms, SCOTUS punted the issue.

So Why are the Courts Blowing up with New Cases?

Putting it simply, district federal courts are taking the arguments in Windsor and taking them to (what they feel is) the next logical conclusion. If the Supreme Court says that discriminating against homosexuals is a violation of 5th Amendment Due Process, then isn’t it also violating the 14th Amendment also? The two amendments have language that mirrors one another, and the elephant in the room is that if a form of discrimination is a violation of the 14th Amendment, that discrimination is prohibited in every state. Justice Scalia, in his dissent in Perry, even very correctly predicted this eruption of litigation, pointing out the holes in the majority’s reasoning when they refused to make a 14th Amendment ruling.

What’s Next?

A Supreme Court case is next, that is assuming one of these cases survives appeal in the Circuits. Rarely is there an issue that is so almost certain to reach and be accepted by the high court. The lower court rulings are overturning major legislation, are creating confusion about federal law application from state to state, and are all based on a hole in the law the Court itself left. This is why lawyers are so excited. One way or another, SCOTUS is going to at least partially settle the LGBT discrimination question in the near future. Will the high court only rule on marriage? Labor restrictions? Or will LGBT status be made a protected class in the eyes of the law, something akin to race, gender, or religious affiliation? This blog’s authors will be watching with anticipation.

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What did the Supreme Court Do when they Struck Down DOMA?

October 31, 2013Filed Under: Court Cases, Current Events

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(This article is written solely for informational purposes for those interested in the law. If you believe you may have a personal claim under the decision in Windsor, contact an attorney with the proper knowledge of federal and constitutional law.)

Intro

First, it is simply incorrect to say that the Supreme Court of the United States (SCOTUS) “struck down” the Defense of Marriage Act (DOMA). SCOTUS via their decision in US v. Windsor last summer struck down the portion of Section 3 of the Act that defines “marriage” and “spouse” for a number of federal government purposes to only be created by relationships between a male and female. To start off, let’s talk about what brought the case about.

In 2007, Edith Windsor and Thea Spyer were legally married in Ontario, Canada. They were at the time residents of New York State and lived out the length of their marriage in New York. Spyer had quite a bit of money, and upon her death in 2009, her will granted her entire estate to Windsor. Edith then attempted to claim the federal estate tax exemption so that the money she inherited from her dead spouse would not be taxed. Absent DOMA, Windsor could have done so because the United States generally recognizes Canadian marriages. However, DOMA was still in force at the time, costing Windsor over $360,000.00 in taxes. Thus came the court case.

The (Heavily Abridged) Decision

Writing for a 5-4 majority opinion, Justice Kennedy wrote that “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency.” For these reasons and others, the majority ruled that Section 3 of DOMA Violated the Due Process clause of the Fifth Amendment to the United States Constitution. The 5th Am., among other things, guarantees that the federal government (that part is important) shall not deprive anyone of “life, liberty, or property, without due process of law.” To put it simply, the majority ruled that the federal government, via DOMA and its imposition of inequality between heterosexual and homosexual marriages, was depriving Windsor of her property (i.e. estate tax exemption of $360k). Such inequality, according to SCOTUS, was a violation of the 5th Amendment, and warranted the overruling of Section 3 of DOMA.

What the Court did NOT do.

The big thing the Court did not do is they did not lend further legitimacy to non-heterosexual marriage in any other context than DOMA and the actions of the federal government. While parts of the 5th Amendment have been incorporated to the states (like double jeopardy and the prohibition against being forced to testify against yourself) by previous court decisions, the due process clause of the 5th Amendment only applies to the federal government. This means the Court did not force states who currently do not allow same-sex marriages to do so, nor did they mandate that those states recognize same-sex marriages from other states or countries. In the companion decision Hollingsworth v. Perry, SCOTUS ruled that the challengers to a California Supreme Court decision that struck down a California Constitutional Amendment that would have banned same-sex marriage did not have standing to challenge the earlier state court decision, and that SCOTUS could not therefore hear their substantive arguments. Again put simply, SCOTUS punted the question of whether or not allowing same sex marriage was prohibited by the 14th Amendment, and allowed the status quo to continue in California.

Questions Left Unanswered

While proponents of the decision in Windsor generally hail the decision as a victory, but sides grumble that the Court distinctly refused to answer some blaring questions starring them right in the face. The Fifth and Fourteenth Amendments, that apply to the federal and state governments respectively, both have due process clauses. In fact, their language is almost identical, which was no doubt the intention of the 14th Amendment’s drafters. If discrimination against same-sex marriage is forbidden by the 5th, then how is it not prohibited by the 14th also? In his dissent, Justice Scalia points out what he sees as an absurd legal fiction created by the majority, writing “As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe… 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.” Both sides of the argument clearly see the gap in the majority’s reasoning, opponents arguing the majority lacked reason, proponents arguing the Court did not follow through with their own logic.

Proponents also point out that Article IV of the Constitution mandates that the states give “full faith and credit… to the public acts, records, and judicial proceedings of every other state.” Marriages are judicial acts supported by state legislation. How then can same sex marriages not be allowed recognition in no same sex marriage states? SCOTUS refused to force the states’ hands in the civil rights context also, deciding ultimately to strike down anti-interracial marriage laws themselves rather than force those states to recognize marriages from other states. Then again, these are VERY different social issues, and it is hard to imagine that the drafters of Article IV, the 5th Amendment, or the 14th Amendment had same-sex marriage in mind when the they all were written. On the other hand, Justice Marshal famously wrote “We must never forget that it is a Constitution we are expounding,” pointing out that the United States Constitution is a living document that in his view must be interpreted with the times. Originalist Justices Scalia and Thomas would no doubt disagree.

Conclusion

US v. Windsor was a landmark decision any way you look at it. Then again, Dread Scott and Lochner, the decisions upholding the Fugitive Slave Act and forbidding reasonable labor protections respectively, were also landmark decisions. This article was not intended to justify nor condemn the decision in Windsor, but to clarify what the Court actually DID, and what they did NOT do. I hope that goal was accomplished.

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