Wednesday, June 26, 2013

Why the debate about marriage isn't over ...

The Supreme Court announced not one, but two major decisions in cases involving same-sex marriage yesterday. Many Americans probably thought this would provide a sense of permanence to a hotly contested issue, however, yesterday's rulings leave loose ends.

The first case, United States v. Windsor, pertained to the constitutionality of the Defense of Marriage Act (DOMA). The primary effect of this law exempted same-sex marriages from the federal government's vast array of benefits (mostly economic) provided to heterosexual married couples.

Edith Windsor and her longtime partner, Thea Spyer, had legally married in Canada, but resided in the state of New York. When Spyer passed away, she left Windsor her entire estate. Because the federal government did not recognize their marriage, Windsor was required to pay more than $360,000 in an inheritance tax. Windsor subsequently filed suit in federal district court.
The Supreme Court settled the dispute by declaring DOMA to be in violating of the Constitution's 5th amendment due process rights. Beyond the issue of basic rights, the case also hinged upon the concept of states' rights versus the sovereignty of the federal government.

The institution of marriage, because not explicitly stated in the Constitution, “an area that has long been regarded as a virtually exclusive province of the States" (per the Court's interpretation of the 10th amendment). For the federal government to intervene would upset the constitutional principle of federalism.

The Court ruled the federal government could not interfere in this area of what the state of New York considered legally permissible (in exercising its sovereignty). The decision noted, "What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect." Simply put, if a state permits same-sex marriages, the federal government has no authority to discriminate in its treatment of marriage for those citizens.

The end result: the Court strikes down DOMA, and the federal government is ordered to refund Windsor's money paid in an inheritance tax. However, some nagging questions still remain.

The Court recognized that only a portion of DOMA was challenged, but they invalidated the entire statute. DOMA permitted each state the ability to not recognize same-sex marriages conducted in other states. What will become of this provision? I'm certain this will be challenged in the future, but these cases often take years to play out in the judicial system.

The decision also left unclear whether same-sex marriages procured in one of the 12 states where it is currently legal would qualify for federal benefits if that couple lived in a state where same-sex marriage isn't legal. For example, West Virginia does not authorize or recognize same-sex marriages, thus the federal government would not be discriminating in denying benefits to gay couples living within this state. Can the federal government still deny benefits to lawfully wedded same-sex couples in certain circumstances?

Additionally, the Court declined to address the issue that proponents of same-sex marriage perhaps sought most. Is same-sex marriage a constitutional right? At stake was the term 'liberty' in the 5th (and 14th) amendment(s) and if that should include same-sex marriage under its penumbra. Essentially, no one knows if marriage is a constitutional right. The decision in United States v. Windsor only states the federal government was wrong to discriminate in its treatment of marriages within a state. The Court's ruling still allows states to leave marriage only to heterosexual couples.

Even more perplexing is the Court's declaration of Congress' rationale for implementing the law in the first place. The majority opinion, written by Justice Kennedy, maintains Congress enacted DOMA with the cruelest of intentions. Seriously? How can Kennedy make such a bold statement?

Justice Scalia questioned the audacity of Kennedy in his dissent, writing,
But the majority says that the supporters of this Act acted with malice—with the “purpose” “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” to “impose inequality,” to “impose . . . a stigma,” to deny people “equal dignity,” to brand gay people as “unworthy,” and to “humiliat[e]” their children.

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.

So, why is the Court addressing the issue of morality as if it were the standard? Though the Court's jurisdiction is to definitively say what the law means, there is no judicial mandate to dictate moral standards. Ironically, gay rights advocates have loathed the idea of any governmental body rendering moral judgement upon them. I suppose turnabout is fair play.

Other than the ruling in the Windsor case, the Court addressed the issue of California's Proposition 8, an amendment to the state constitution that defined marriage as a union between one man and one woman. The case, Hollingsworth et al. v. Perry et al., challenged Proposition 8 as a violation of the U.S. Constitution's 14th amendment (both the Equal Protection and Due Process Clauses).

When Proposition 8 passed by voter initiative, gay couples challenged it in Federal District Court. That court ruled Proposition 8 a violation of the Constitution, and state officials in California chose not to appeal the decision. When the state government chose not to appeal the case, two private groups, and Campaign for California Families, chose to continue the fight to save Proposition 8. These groups appealed to the 9th Circuit Court of Appeals and ultimately, the Supreme Court.

The Supreme Court held that these private groups had no standing to bring the case any further after California officials abandoned Proposition 8's defense. Chief Justice Roberts, writing for the majority, stated the case should have ended after the District Court's ruling because private groups could not demonstrate any damage or injury needed to have standing in federal court. Moreover, Roberts discussed the need for an actual controversy to exist at all stages of the appeals process. Since the state of California had declined to appeal the case on their own, the controversy ceased to exist.

By ruling on the issue of standing, the Court essentially 'punted' on having to rule about whether a state ban on same-sex marriage violated the 14th amendment.

This decision lacked the dramatic nature of Windsor, but both cases bring about an interesting question about the role of the executive branch (at state and federal levels). California officials did not seek to defend Proposition 8, which was implemented by a statewide vote. President Barack Obama and his administration declined to defend DOMA, a federally enacted statute. Do these examples set a bad precedent that could interfere with the principle of separation of powers and the concept of a democratic consensus?

California Governor Jerry Brown was elected in part due to his pledge not to defend Proposition 8. President Obama publicly declared his belief that DOMA was unconstitutional and he would not defend it. Since when can the chief executive determine which democratically implemented laws he will or will not enforce? And, what makes President Obama believe he has the authority to declare acts unconstitutional? (Don't think for a second that went unnoticed by the Court -- Justice Kennedy plainly reminded everyone who had the power of judicial review.)

I suspect the Court tempered their rulings to provide a slower, smoother transition to an America with a different concept of marriage. However, in dealing with controversy of same-sex marriage, the Court seems to have generated more questions than answers.

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