Constitutional Law

Hollingsworth v Perry (U.S. June 26, 2013) 
United States v. Windsor (U.S. June 26, 2013)

Reading and watching the news for the last few days has made it clear that the United States Supreme Court's recently issued "Rainbow Rulings", which dealt with different facets of gay rights and marriage, are two of the least-understood opinions in memory. Pundits have openly claimed that the Court has redefined marriage, creating a national right to same-sex marriage. Quite simply, this is not true. This guest post is intended to explain the Court's holdings in those two opinions and to demonstrate that pundits should read before talking--acknowledging, of course, that some pundits’ intent might never have been to offer informed opinions.

On June 26, 2013, the Court handed down opinions in two cases that dealt with gay rights. The more substantive opinion was United States v. Windsor, which focused on the federal Defense of Marriage Act ("DOMA"). The second opinion, Hollingsworth v. Perry, stemmed from California's Proposition 8 and turned entirely on procedure.

Starting with United States v. Windsor, Edith Windsor, and Thea Spyer were two women in love. They met in 1963 and began a long-term relationship that lasted until Spyer's death in 2009. Anticipating many things, including Spyer's death, the couple traveled to Canada in 2007 to be married. Same-sex marriage soon thereafter became legal in New York, at which point the couple's marriage became recognized by the State of New York.

When Spyer died in 2009, Windsor paid $363,053 in estate taxes and then sought a refund. But the Internal Revenue Service denied the refund, concluding that under DOMA Windsor was not a "surviving spouse." Windsor then commenced the lawsuit that resulted in the Court's June 26 opinion.

The Court's Windsor decision was authored by Justice Anthony Kennedy. Court watchers know that Kennedy was most likely to write this opinion, regardless of what it decided, due to his status as the Court's primary swing vote. Court watchers also know that leading up to this case, Justice Kennedy had authored the only other two Supreme Court cases addressing gay rights, both of which created or expanded upon the core rights realized by gay Americans. The central question, then, was which of two trends would prevail: would Kennedy author a third opinion that expanded rights for gay Americans, or would Kennedy continue his slow creep to the right that has occurred over the life of the Roberts Court.

Justice Kennedy's opinion begins in substance when he identifies the tension between DOMA and laws of twelve States. DOMA defined marriage as a relationship between one man and one woman, whereas twelve states, as of June 26, 2013, recognized same-sex marriage. Thus, twelve states granted full marriage rights to same-sex couples, while the federal government recognized no such rights. Such rights include filing joint tax returns and survivorship benefits.

Justice Kennedy then moved on to point out that marriage is an area that has long been regarded as a province of the States. In fact, the federal government has long deferred to state law with respect to domestic relations. It was this long history of states regulating domestic relations that empowered states such as New York to authorize and recognize same-sex marriages, to begin with.

With this backdrop, Justice Kennedy sorted through the history of DOMA and concludes that its sole purpose as legislation was to injure gay and lesbian Americans wishing to be married--the very class of citizens that New York sought to protect. Justice Kennedy concludes that such intent is improper. Relying on a body of law that he created, Justice Kennedy pointed to the Constitution's guarantee of protection from improper animus or discrimination and determined that DOMA’s deliberate interference with rights granted by states violated that right. Justice Kennedy concluded that DOMA was invalid, explaining:
"[DOMA], for 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. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."

Justice Scalia, known for his wit, sarcasm, and social conservatism, penned a blistering dissent. His discussion is too broad ranging and too full of bitter one-liners to condense without losing effect. I note only that Justice Scalia seems to have coined a new phrase--"legalistic argle-bargle"—the definition and legal significance of which is left to be seen.

By contrast, Hollingsworth v. Perry, authored by Chief Justice Roberts, is a study in federal jurisdictional doctrine and contains no substantive discussion of gay rights, social issues, or constitutional rights.

In 2008, the California Supreme Court held that limiting the definition of marriage to opposite-sex couples violated the equal protection clause of the California Constitution. That decision prompted a ballot initiative known as Proposition 8, which was an attempt to garner the support needed to amend California's Constitution to define marriage as between a man and a woman. Proposition 8 passed and became the law of California.

A gay couple and a lesbian couple, represented by two superstar attorneys in Ted Olson and David Boies, filed a federal lawsuit claiming that Proposition 8 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. The complaint named as defendants California’s Governor, attorney general, and various other state and local officials responsible for enforcing California’s marriage laws. Those officials refused to defend the law, so the district court allowed the official proponents of Proposition 8 to intervene and defend that lawsuit. After a twelve-day bench trial, the district court declared Proposition 8 unconstitutional for conflicting with the Fourteenth Amendment.

After the trial court issued its decision, the named defendants in the lawsuit refused to appeal the district court’s decision, and so the petitioners in front of the U.S. Supreme Court—the proponents of Proposition 8—initiated an appeal.

After spending twelve pages discussing the nuances of the doctrine of standing, Chief Justice Roberts concluded that the proponents of Proposition 8 did not have standing to appeal the trial court’s decision and had no standing to bring the case before the Supreme Court. Chief Justice Roberts remanded the case to the Ninth Circuit Court of Appeals for dismissal, leaving the decision of the trial court to stand.

As demonstrated above, these two opinions are narrow, limited in scope and jurisdiction. The Court distinctly did not find a constitutional right to same-sex marriage and did not overturn any democratically determined outcome. The Court did not adopt or rely upon any definition of marriage.

To those who were worried, the sky is not falling, the world is not ending, and the United States Supreme Court continues to do its job.

Barrett McNagny LLP

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