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A one-two punch to the nation’s most prominent antigay laws

Suzanne Goldberg is a Professor of Law at Columbia Law School. Professor Goldberg was counsel of record on an  amicus brief in support of the respondents in Hollingsworth v. Perry and was among the counsel on an amicus brief in support of the respondents in United States v. Windsor.

The Court’s decisions in Windsor and Perry – the first major gay rights rulings in a decade – are a one-two punch to the nation’s most prominent antigay laws.  Today, the Court has brought an end to the damage wrought by the federal Defense of Marriage Act on countless same-sex couples throughout the United States and left in place Proposition 8’s invalidation by the federal district court.

Neither decision is surprising but both are gratifying.  And both reinforce the dramatic shift in the Court’s approach to gay rights – and to gay people.  Just over a generation ago, in the Court’s 1986 Bowers v. Hardwick ruling, the Court held that it was “at best facetious” that a gay person would have a constitutional right to sexual intimacy in his apartment.  Today, Justice Kennedy, in his Windsor opinion, writes that DOMA’s burden “demeans” same-sex couples and “humiliates tens of thousands of children now being raised by same-sex couples.”

Put simply, it was almost unimaginable, when the gay rights movement took hold in the 1970s, or even as legal victories started to mount in the 1980s and 1990s, that the nation’s highest Court would find that a federal law unconstitutionally interfered with the “equal dignity of same-sex marriages.”

Yet reaching this conclusion was not a constitutional stretch.  Relying on a forty-year old opinion striking down Congress’s discrimination against hippies (Department of Agriculture v. Moreno), the Court had little difficulty finding illegitimate stigma in DOMA’s “unusual deviation from the usual tradition” of the federal government accepting state definitions of marriage, as it struck down DOMA’s section 3, which prohibited the federal government from recognizing same-sex couples’ marriages.

Ironically, the very first time the Court recognized that this equality guarantee protected gay people came in 1996 (Romer v. Evans, which struck down Colorado’s antigay amendment) – the same year of DOMA’s passage.  In essence, then, even when DOMA first arrived, the Court’s equality jurisprudence contained the seeds of its demise.

But if the change has come quickly in constitutional and political terms, it has been a long stretch of years for same-sex married couples who have lived under DOMA’s discriminatory regime.   And it has been a full decade since marriage rights were first recognized in Massachusetts, which in turn enabled DOMA’s double standard for the marriages of same- and different-sex couples to have its first practical application.  The Court’s opinion makes these injuries plain.

Of the thousand-plus marriage rights that DOMA denied to same-sex married couples, Justice Kennedy’s opinion highlights some of the law’s most profound harms –as well as harms that have been especially vexing to same-sex couples (and their lawyers and accountants) – including DOMA’s denial of healthcare benefits, bankruptcy protections, and joint tax filing.  The majority opinion also sets out the obligations that the federal government imposes on married couples but, under DOMA, did not apply to same-sex couples – including federal ethics and government integrity rules.

And in one small but notable snippet, the Court mentions that DOMA’s injuries extend to prohibiting same-sex married couples being buried together in veterans’ cemeteries.  Although many readers probably skimmed right through that part of the opinion, it is worth remembering that until September 2011, when Congress repealed Don’t Ask Don’t Tell, gay and lesbian individuals could not even serve openly in the nation’s military.

Following on Justice Kennedy’s concern about the children of same-sex couples, which he voiced during the oral argument, the Court’s opinion also flags the specific financial injuries that DOMA causes to married same-sex couples with kids, including those related to health care and survivors’ benefits.

All of this is important, of course, to Justice Kennedy’s reasoning.  But what is most striking about the opinion, again, is the direct, clear way that the Court seems to understand why DOMA is such an egregious violation of the constitution’s equality guarantee under the Fifth Amendment.   Words like “demean,” “degrade,” and “humiliation” do not appear often in Supreme Court opinions in reference to unconstitutional laws.  Yet the Windsor decision is replete with those words and more.    Indeed, the tone of the opinion almost suggests a sense of offense on the Court’s part:  “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.”  And again, DOMA “imposes a disability . . . by refusing to acknowledge a status the State finds to be dignified and proper.”  Still more:  “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

The immediate impact of DOMA’s invalidation will be powerful.   For same-sex couples who are legally married and live in one of the 13 states that recognize their marriages (now including California; more on that in a moment), full marriage equality will be theirs to enjoy on the same-terms as different-sex couples.

This shift will also bring to the end a fraught political battle in another field – immigration –where the Senate recently, and dramatically, refused to include same-sex couples in its immigration reform bill.  Although immigration rights were not highlighted on the Court’s list of DOMA’s harms, this issue has been particularly damaging and painful to same-sex binational couples, who have until now been treated as legal strangers by federal immigration law.  Although the Obama administration recently took steps to limit deportations in which a couple would be torn apart, nearly all same-sex binational couples have been living in a painful legal limbo, separated by national borders.  With DOMA’s demise, this, too, should end immediately.

But DOMA’s invalidation does not entirely end the problem of marriage discrimination against same-sex couples.  Instead, its legal impact is at the federal level, and even that is likely to be uneven, reflecting the country’s complex legal patchwork for same-sex couples.  For legally married same-sex couples outside those states, who also want their marriages recognized by the federal government, a new wave of challenges begins.

On this point, the Court also made an important observation.  Although recognizing that the federal tradition is to defer to the states, the Court also made clear that the federal government can “regulate the meaning of marriage in order to further federal policy.”

Given the Obama administration’s opposition to DOMA, this statement will certainly be invoked by advocates to push the administration to move quickly in doing all that it can to recognize same-sex couples’ marriages, even in states that do not recognize those marriages.  Some of this change can come quickly through policy change and executive order.  Other moves to equalize marriage rights at the federal level may need to come via agency regulation, which requires notice and comment.  Indeed, shortly after the decision came down, the President issued a statement applauding the Court’s decision to strike down DOMA and stating that he has “directed the Attorney General to work with other members of my Cabinet to review all federal statutes to ensure this decision, including its implications for Federal  benefits and obligations, is implemented swiftly and smoothly.”

On Perry and Prop 8

By contrast to the Windsor decision, the tone of the Perry decision is straightforward and the content is almost strictly doctrinal.  It is also absolutely correct in my view, and adheres to reasoning my colleague Henry Monaghan and I presented in an amicus brief (and to similar reasoning offered by former Solicitor General Walter Dellinger).

Consistent with its other Article III standing jurisprudence, the Court concludes that private parties cannot step in to defend the constitutionality of a state law when a state government has opted not to defend.  As the Court noted, this had been an open question until now; though earlier precedent cast strong doubt on a private party’s ability to substitute itself for the government to defend a law, Perry is the first case to present that issue squarely.

Two aspects of the opinion – or rather, what is not in the opinion – warrant special attention.  First, had the Court gone the other way and found standing for Proposition 8’s sponsors, as the four dissenters would have ruled, Article III would now be beset by a gaping hole.  Allowing private individuals to invoke federal court jurisdiction when they disagree with a government’s decision not to defend a law would have vitiated the long-settled Article III requirement that federal court litigants have a direct and particularized interest in the case they pursue.

And this, in turn, would have created enormous political problems.  In the Perry case, for example, Proposition 8’s sponsors – while claiming to be acting in the California government’s stead – were making arguments condemning gay parents that directly contradicted California law and policy.

The second notable feature of the opinion comes back to tone.  An alternate opinion might have regretfully expressed that Article III denied standing and offered support for Proposition 8’s sponsors in the political or state court realm.  This alternate opinion might have colored its opening paragraph, not by Chief Justice Roberts’s observation about the “active political debate over whether same-sex couples should be allowed to marry,” but instead by a framing much more sympathetic to those who would deny marriage equality to same-sex couples.

But it did not.  Instead, the Chief’s opinion, apart from that opening paragraph and a brief recounting of the facts, could have been written for any other case involving a voter initiative that the state did not defend.  This absence of commentary on the convictions of Proposition 8’s sponsors, as much as the more dramatic language in the Windsor opinion, underscores the sea change in the Court’s approach to gay rights claims.

In short, the outcomes here are both consistent with prevailing jurisprudence, and both are likely to be invoked in the future as marriage litigation continues into its next phase.  More importantly, perhaps, the Court’s effusive, heartfelt invalidation of DOMA is consistent with the prevailing trend in the nation toward including gay people not only in marriage but also in the country’s greater promise of equality for all.



Recommended Citation: Suzanne Goldberg, A one-two punch to the nation’s most prominent antigay laws, SCOTUSblog (Jun. 26, 2013, 2:07 PM),