Wednesday, June 26, 2013

What the DOMA and Prop 8 rulings mean, and what they don't

Today is a historic one in our nation, certainly, but requires a little bit more explanation than the mainstream media tends to give.

Lucky for you all, I've been glued to the interwebs for hours already and have read all the opinions.

I will go over each case, and tell you what the effective results are. I will also tell you what these opinions do not cover, and what doors have been opened for future litigation on the subject of marriage equality.

US v. Windsor, aka the DOMA case
In this case, a lesbian couple was legally married in Canada. They lived in New York state, which recognized marriages performed in other states at the time. Upon the death of her partner,Windsor was made to pay estate taxes on the inheritance from her wife. She sued the United States government claiming that the Defense of Marriage Act (DOMA) was unconstitutional because of the unequal treatment she received under federal tax provisions.

In the ruling today, the court struck down Section 3 of the law as unconstitutional for violating the fifth amendment's protections of due process and equal liberty.

This case says that the federal government must recognize and treat equally all marriage sanctioned by states.   It is imperative that people understand that this ruling does not create a constitutional right to marriage equality. The opinion hinged on the fact that the parties in question had a marriage legally recognized by the state of residence at the time. The court narrowly held so, based on the facts of the case.

This case implies that the federal government may be required to treat all marriages equally in relation to federal laws. How this will actually play out in real life depends on how the rest of the government reacts. Of particular interest is how, if at all, this case will affect gay marriage partners who are citizens of other nations, currently involved in deportation hearings. Will it permit gay spouses to live indefinitely in the United States as  a right associated with marriage? Only time will tell, and those will likely be some of the most immediate questions.

There are several other questions left unanswered by the opinion. This case in particular involved the tax code. Is Windsor entitled to recapture the monies paid to the IRS wrongfully? It would seem so, as that was the core of her case.  How would it affect other parties in similar situations? Are the rights conferred retroactive in any way? We don't know.

Only Section 3 was struck down in this case, leaving the rest of the law arguably in effect. Section 2 permits states to refuse to acknowledge gay marriages performed in other jurisdictions. The next logical challenge would involve this provision, as it's essentially a direct violation of the full faith and credit clause of the Constitution.

The ruling requires the federal government to treat all marriages equally, but does not require the same of the states. It does not mandate that all states allow or even acknowledge gay marriages.

This case opens the door to a great amount of uncertainty and new litigation. Congress could move to change laws, the President could issue executive orders as well in light of it all, but as with everything it seems in this country anymore, it's more likely that most of these issues will be teased out in court.

It is a step, albeit not as big a one as many think, in the right direction.

We'll also ignore, for the moment, that the same standing issue that resulted in Perry being dismissed existed here.

Hollingsworth v. Perry, aka the Prop 8 case
The California Supreme Court said there was a constitutional right to gay marriage. Marriages were performed and rights conferred. Voters then disagreed, and Prop 8 was authored, worded to not just ban gay marriage but define marriage as only between a man and a woman. It narrowly passed as an attempt to circumvent/overrule the court.

Gay couples were given rights, then had them taken away. A case decided that those married while it was legal had recognized rights still but no further marriages could be performed.

Further challenges to the law were filed. The state government refused to defend Prop 8 in court, so those who drafted it stepped in. Essentially the decision today says that if the government refuses to litigate the case, an individual cannot do so either, so the appeal was improperly granted. The parties did not have standing.

It appears that the main result of this case is to reinstate the right of gay marriage in California. There is an injunction prohibiting enforcement of Prop 8. For now at least, gay marriage is legal in California, though I am sure another challenge will be mounted (and am also sure that any challenge attempted will fail).

There is a very real possibility that some court clerks could refuse to issue marriage licenses, claiming that Prop 8 is still in effect. This would open the door to more legal challenges in the state.

The court basically decided not to decide this case, though they did say that it was to be remanded and dismissed, effectively reinstating gay marriage, but not without leaving a great many questions unanswered.

Today will go down in history, even if it takes a few more years and a lot more lawsuits to reach actual equality. Fight the good fight.


  1. Fight the good fight. Right on!
    Thanks for explaining the rulings so clearly!

  2. Do you know Jay Sekulow is? He's a brilliant but bigoted right wing attorney who's argued in front of the Supreme Court. He has a talk show in here in Atlanta. Basically his response, as was former Supreme Court clerk, Laura Ingraham's, now righty talk host were - "prepare for appeals and lawsuits, and gay marriage as law in the United States will be dependent on individual states".

    Still, I may be a liberal but I also believe in states rights, to a degree. The chance for same sex couples to face no FEDERAL challenges is amazing.

    great day

    1. I'm assuming a challenge to section 2 will come down the pipe pretty quickly, because it is a direct violation of the full faith and credit clause. I believe in state rights too, but not to the degree that they are permitted to infringe on personal rights, especially of this nature. Marriage rights are pretty fundamental and should be transferable.

  3. In one piece I read today supporters of Prop 8 are saying since this was not a class action only the two couples involved will have access to marriage in California. I think they are clinging to fantasy but I see their legal point.

    1. That's definitely fantasy. Class actions are not required to fundamentally change laws. The holdings of the court would apply to any other relevant case, and lower courts are bound by precedent.

    2. Glad to hear that. It really did seem like a desperate attempt to maintain their position.


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