Decision day at the Supreme Court. Two landmark rulings on gay marriage. We’re on it with top legal minds from across the country.
A big decision day in a week of big decisions at the U.S. Supreme Court. Tuesday, the Voting Rights Act. Wednesday, gay marriage.
The high court is weighing two major cases — on California’s gay marriage ban and its overturn and on the Defense of Marriage Act and federal benefits for gay and lesbian couples.
The court’s decisions deal with the heart of a profound movement in cultural and legal understandings of same-sex marriage. Advocates of change, looking for affirmation. Opponents, for ammunition.
This hour, On Point: Decision day in the high court on same-sex marriage.
– Tom Ashbrook
Neomi Rao, professor of law at George Mason University School of Law who focuses on constitutional law. She was a formerly Associate White House Counsel and Special Assistant to George W. Bush. She also clerked for U.S. Supreme Court Justice Clarence Thomas.
David Codell, legal director at The Williams Institute at UCLA School of Law. He represented Equality California in multiple cases related to the Prop 8 ruling, and he co-authored amicus curiae briefs for both of the same-sex marriage cases. He also clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg.
Emily Bazelon on the decision, its implications and Justice Kennedy’s opinion:
“It’s a 5-4 decision; it’s written by Justice Anthony Kennedy. He is saying the Defense of Marriage Act, because it essentially discriminates against gay people, is a violation of the equal protection guarantee in the Fourteenth Amendment. The implications of this are that gay people who are legally married in states that have legalized gay marriage should be receiving federal benefits from the federal government — very soon, I hope … You’re seeing Kennedy joining with the liberals and moderates on the court to strike down DOMA. And you’re seeing the conservatives on the other side. I think what’s really crucial to Kennedy — there are two principles here. One is the traditional sway that states have had over marriage, over domestic relations, and the idea that when Congress passed the Defense of Marriage Act, it intruded on what is traditionally a province of the state. And then the other thing that is really important to Justice Kennedy is the idea that the law cannot single out certain groups just because it disapproves of them, that there is some latent prejudice. I think he sees in the Defense of Marriage Act exactly that problem.”
Correction: The above has been updated to correctly reflect that Kennedy wrote the opinion, not the dissent, and that equal protection is part of the Fourteenth Amendment, not the Fifth Amendment. Bazelon stated it correctly.
Bazelon on changing norms:
“This law passed in 1996 — at the time it would never have occurred to most people that preventing gay marriage could be unconstitutional, but now we know that it is. The polls have changed; public opinion is much more in favor of same-sex marriage than it was then. I think that thousands of couples across the country have gotten married now in 12 states has really changed this whole social norm, and we can all see that this is a normal part of life and it means a tremendous amount to the gay community but, I think, also to everyone.”
Bazelon on the path toward equal marriage on a national scale:
“This is the incremental step toward legalizing gay marriage in terms of federal benefits that the gay rights legal community very carefully teed up. The thinking was that it would be too much to ask the court all at once to legalize gay marriage across the entire country. And so instead what we’re seeing is a kind of step-by-step building of the legal principles that they hope will eventually lead to that result. In the meantime, we have this very meaningful interim moment in which couples like the woman, Eddie Windsor, who was the plaintiff in this case — she is over 80 years old, she was widowed, she had to pay a very large estate tax when she lost her wife because that marriage was not recognized by the federal government. And so all of those tax benefits, all of those social security benefits, all those things that are benefits for straight couples when they get married will now also be accruing to gay couples who are legally married in the states they live in.”
David Codell on the significance of striking down DOMA:
“Justice Kennedy’s opinion recognizes the type of harm that DOMA imposed on same-sex couples. The opinion acknowledges that ‘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.’ The court’s opinion I think is significant because there was some concern I think in the LGBT that the court would focus on federalism issues, the powers of government — some of which is addressed here — without addressing the fundamental harm of DOMA, which was its denial of equal protection to gay and lesbian people. So today’s opinion is a positive development for the LGBT community because the court is acknowledging the harm that is done when, in this case, the federal government refuses to even recognize their families.”
Neomi Rao on the court’s equal protection interpretation:
“It is a different understanding of equal protection if one is looking, say, at the original meaning of the Fourteenth Amendment. It is not a dramatic departure when you look at some of the court’s decisions over the last decade or 20 years, where Justice Kennedy and Lawrence in some sense very much set the groundwork for this opinion in DOMA today.”
Codell on the evolution of LGBT issues in the courts:
“I have thought from the beginning that the Defense of Marriage Act is unconstitutional. Even though it was enacted at a time when no same-sex couple was married in any place in the entire world, the measure was so clearly designed to cause harm to a particular group of people, as the court recognized today. I think from the beginning many people thought that this measure would not survive. I think a constitutional challenge to DOMA had to await the day when same-sex couples actually could marry. That day of course is here; we’ve now got 12 states and the District of Columbia, within a few months, that will be the number that permits same-sex couples to marry. This day I think was coming. I think the courts’ cases — Romer v. Evans in 1996, Lawrence v. Texas in 2003 — were laying the groundwork for understanding gay and lesbian people. The interesting thing about this case is this case, along with the Prop 8 case, are the first instances in which the court has had before it a case where it was asked … to rule on the rights of gay people in a family. This is the first time the court has had a chance to recognize gay people as members of families.”
Bazelon on how the Obama administration could proceed:
“There’s going to be a really interesting and complicated set of legal questions about how this patchwork of rights and benefits is going to play out. For example, the IRS only recognizes — or goes by the marriage law of the state where you live. So if the Obama administration follows that rule, then gay couples who are married in Massachusetts and then move to Nebraska would not get the tax benefits. On the other hand, other federal agencies do this differently. So we’re really going to have to see how the Obama administration decides to interpret this ruling, and I imagine it’s going to take them a little while to react. Although, presumably, they’ve also been preparing for it.”
For the 36 states that still do not have legal gay marriage, does the DOMA ruling put pressure on them to legalize gay marriage? Rao answered:
“The majority opinion seems to be careful not to specifically reach that question. But I think, as Justice Scalia points out in his dissent, the rationale of the majority opinion strongly suggests that those laws may be unconstitutional, precisely for equal protection reasons. If these types of laws demean the dignity of same-sex couples, then the next step is that the states who prohibit gay marriage — those laws are also invalid. That issue hasn’t been decided in this case, but I think it’s probably a next logical step.”
Bazelon agreed with Rao, but only to a point:
“I think it’s a logical step; it will take more litigation. There will be some sense of impatience. Once you have this ruling, people in the gay rights advocacy camp will be hungry for more, and that’s understandable.”
Bazelon on individual cases vs. sweeping rulings:
“It’s important to remember that one of the virtues of the way the Supreme Court does business is it only decides the cases and controversies in front of it. And sometimes that can help society get used to a relatively new idea and kind of take it in one bite at a time, as opposed to in a more dramatic and sweeping fashion. So I think that’s really one of the great things about this whole idea of challenging the Defense of Marriage Act in particular as opposed to a more sweeping ruling that would simply legalize gay marriage across the entire country.”
Bazelon on the court’s Prop 8 opinion, which said the court did not have jurisdiction — or “standing” — to rule on the case:
“We will go all the way back to the district court ruling in California, and that ruling struck down Proposition 8, California’s gay marriage ban. And it will be up to the state of California to figure out how to apply that statewide … What happened was that the court decided that this case should not have come before it because the proper parties weren’t there. This is what’s called ‘standing’ — the idea that you need to meet certain tests in order to bring your case to court. This is a really lineup. We have in the majority denying standing, Chief Justice Roberts with Justices Scalia, Ginsberg, Breyer and Kagan … and then the dissent is Justice Kennedy with Justices Thomas, Alito and Sotomayor.”
Codell on Prop 8 no longer being effective in California:
“The [case] appeal is gone, and so what we’re left with is the case before the appeal happened, which is the district court ruling. And the district court ruling was that state officials and everyone acting under their supervision could no longer apply Proposition 8. And so what that means is that the state officials in California will likely instruct the county clerks in California that they must begin allowing same-sex couples to marry. There is a lingering dispute out there as to whether the district court ruling would apply statewide. Some people argue that it wouldn’t. I think the better of the argument is, based on the way California marriage law operates, there will be a uniform policy throughout the state.”
Rao on the implications of the Prop 8 ruling:
“I’m not sure a ruling on standing will have national implications … It’s largely confined to California, so part of the question is whether the district court can issue an injunction that applies statewide. There’s a lot of legal dispute about whether a district court judge, a trial court judge, can do that … There’s a different question about whether the state of California, the government of California will just choose to apply it statewide.”
Bazelon on the complicated nature of Prop 8:
“The risk of the California case was that the court was going to make a move against same-sex marriage and say something that would uphold this voter-approved initiative banning gay marriage. And that didn’t happen. So essentially the California case is mostly awash — although, I think David’s right, that likely there will be gay marriages taking place statewide in California. It’s not awash for California, although it’s a little bit tricky because what we have is a district court, one judge’s order — that’s different from the Ninth Circuit, which would’ve been clearly statewide, the court of appeals order. So what we have here is a little confusing; there’ll be some announcement, I assume, from Gov. Jerry Brown and his attorney general about how they plan to take in this ruling. And then there may be more lawsuits that follow from this. But I think what the most important thing is that the Supreme Court has said things today that are only in support of recognizing the rights of gay couples, and that is really going to be a cause of celebration for the gay rights cause.”
Codell on hospital visitation rights:
“For hospital visitation rights, the Obama administration already took a big step by issuing regulations that require that hospitals that receive federal funds must allow visitation for same-sex partners and spouses. That issue has already been dealt with by the Obama administration for many, many hospitals around the country. Hospital visitation is normally governed by state law, but Obama was able to issue that regulation because it applied to hospitals accepting federal funds.”
Bazelon on the normalization of gay marriage:
“The argument for gay marriage all along, since it was resurrected in the late 1980s, has been that this is a move that will allow gay people to live in the same ways that straight couples do, to have the same range of choices that straight couples have. And so what you imagine from that and what we are seeing, as gay people get married across the country, is a normalizing. The idea that there is this kind of separate lifestyle that’s different and deviant, I think it’s really being given the lie, and that is such an important part of this ruling today.”
Bazelon on the role of dignity in the DOMA ruling:
“What I think is really remarkable about this opinion and important is Justice Kennedy’s emphasis on dignity. He has been paving the way for this for years. He has been embracing gay rights and talking about how important it is for all people in different statuses and classes in the country to have equal dignity. And so you so that in Lawrence v. Texas, which was the court’s ruling striking down state laws that criminalized sodomy. Kennedy was very concerned about dignity in that opinion. And you see it again today. And I think there’s just this basic recognition of humanity and embrace of the full kind of scope of the human experience in this opinion, and I really think the country is ready for exactly this — both the legal step and also importantly the kind of social step the court is taking here.”
Rao on constitutionality, equal protection and states’ rights:
“I’m one of those conservatives who, as a political matter, very much supports same-sex marriage and sort of the rapidly increasing political recognition for same-sex marriage. I do think, though, that the constitutional issues are somewhat different. And so while there may be a celebration of sort of the tremendous political strides that have been made over the last 10, 15 years, I think the constitutional issues are a little bit different … Even if we value individual dignity and the recognition of that, it doesn’t necessarily mean that there is an equal protection violation when a state distinguishes between same-sex and heterosexual marriages. I think that’s an important distinction to maintain … [The court has] said that this is a very much about equality, it’s about equal protection. They could have issued a somewhat narrower decision on federalism grounds, which although the opinion sort of mentions federalism doesn’t strongly rest on a federalism rationale. And so I think it is quite significant that they are saying equal protection includes this kind of recognition for this issue. I think it very much calls into question the laws in the 36 states which oppose gay marriage.”
Clinton signed DOMA, and Obama came into office without a definitive position on marriage equality, but Codell said the DOMA ruling sends a definitive message about discrimination:
“The transformation in public understanding of LGBT persons has advanced tremendously and as people come to know LGBT people in their lives and understand their shared humanity with everyone else, understanding of the importance of treating people equally under the law also increases … I think it’s very significant … that this opinion by Justice Kennedy in the DOMA case focuses on dignity. Although, none of the opinions in these cases address whether states must let same-sex couples marry, and that includes the opinions in the Prop 8 case, which are on jurisdiction on local grounds. Though none of these opinions address that question. These fundamental points that Justice Kennedy makes about dignity, about the harm to same-sex couples and their children — which he repeatedly emphasizes — when the state singles them out for different treatment will, I think, have implications on constitutional arguments in future cases as to whether the states may withhold the right to marry from same-sex couples. And I think one thing that’s very important in Justice Kennedy’s opinion is he acknowledges that DOMA as a discriminatory law, telling all federal officials not to recognize same-sex couples’ marriages, really sends signals to others, basically that it’s OK to discriminate. I think that’s an important point.”
Bazelon on Justice Kennedy’s emphasis on the children of gay couples:
“I think lots of people thought that DOMA would be struck down after oral argument. I know, for me listening in the courtroom, there was a really important moment. It came actually in the California case, but the lawyers and the justices were batting around this question of what’s the harm from allowing gay marriage? Why should the state be allowed to do this? What’s the state interest here? And Justice Kennedy brought up the potential harm to the children of gay adoptive parents of not having legal gay marriage. He talked about the voices of the children. And, to me, that suggested he was really thinking about this on a very human level, about the couples maybe he knows or that certainly that he can read about. I think so many of us have friends and family who are directly affected by these decision. And so you can see that concern under his decision here.”
Rao on the 5-4 split of the Supreme Court decisions:
“I think historically the number of 5-4 decision over the last 30 or 40 years has hovered around 30 to 40 percent. It does happen that the more high-profile cases tend to be 5-4. But you can see it in the marriage cases — in the DOMA case, it was sort of a traditional 5-4 split with Justice Kennedy joining the liberals in the case. But in the Prop 8 case, in the California case, with respect to standing, an unusual lineup with Chief Justice Roberts and Scalia joined by Ginsburg, Breyer and Kagan. So not all 5-4 decisions are along the traditional lines. Most decisions are not, in fact, 5-4 decisions.”
Bazelon on the gay rights movement moving forward:
“When you look at the polls, you see a real shift towards support of gay rights and gay marriage. It’s especially true among young people where the rates of approval are up into the high 70s. And so I think conservatives who are social conservatives and deeply oppose this redefining of marriages are on the losing side here. Now it is true there’s lots of efforts still to be expended by the gay rights movement — those 36 states … we’re in the middle of a shift here. By no means time for the gay rights movement to declare complete victory, but I think they certainly have momentum on their side.”
Codell on Lawrence v. Texas and Justice Scalia’s enduring dissent:
“Today happens to be, also to the day, the 10th anniversary of when the Supreme Court issued its opinion in Lawrence v. Texas, which struck down Texas’ sodomy laws. June 26 may start to take on special significance for the LGBT community in America. In the DOMA case, Justice Scalia has a dissenting opinion where he goes on at length about the fact that, in his view, the majority’s opinion striking down DOMA resting on dignity principles will inevitably lead to the legalization of marriage equality in the states. In 2003, the Lawrence v. Texas case, Scalia made the same prediction.”
From Tom’s Reading List
SCOTUS Blog: Waiting On Proposition 8 And DOMA Decisions: In Plain English — “Over four years ago, superlawyers Ted Olson and David Boies — who opposed each other in the Bush v. Gore presidential election case — came together to challenge California’s ban on same-sex marriage on behalf of two California couples. In the next few days, the Supreme Court is finally expected to rule on whether that ban (known as Proposition 8) and the federal Defense of Marriage Act – which limits marriage to a union between a man and a woman for purposes of federal law — are constitutional. But then again, it might not.”
The New York Times: How The Court Could Rule On Same-Sex Marriage [FLOWCHART] — “While hearings in March on California’s ban on gay marriage were murky, hearings on the Defense of Marriage Act were more clear, as the justices seemed ready to strike down a central part of the act that bans federal benefits to gay spouses.”
Associated Press: Supreme Court Has Range Of Options On Gay Marriage — “A look at potential outcomes for the Proposition 8 case and then for the case about DOMA.”