[Note: A version of this was previously posted at Ordinary Times’ Love Symposium.]
The Federal Government
U.S. Attorney General Eric Holder announced that the federal government will recognize all same-sex marriages and ensure equal protection for them in all federal government programs. This includes couples who got married in a state that allows SSM but who currently reside in a state that doesn’t. This is particularly interesting, as it resolves one of the petty whines in Scalia’s Windsor dissent:
[This decision] avoids difficult choice-of-law issues that will now arise absent a uniform federal definition of marriage. [cite omitted] Imagine a pair of women who marry in Albany and then move to Alabama, which does not “recognize as valid any marriage of parties of the same sex.” [cite omitted] When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)?
The Attorney General’s easy resolution of this puts to lie Scalia’s pretense that this was a particularly problematic consequence of Windsor.
The 9th Circuit Court of Appeals
The 9th Circuit Court of Appeals, ruling on the issue of striking a juror from the pool based on his homosexuality, concluded that the Supreme Court’s rulings required using “heightened scrutiny” to evaluate discriminatory actions against homosexuals, rather than the lower standard of the “rational basis” test.
New Mexico is the only state that has neither a statutory nor constitutional reference to same-sex marriage, and its marriage statute is not gender specific. Last year 8 of the states counties, incorporating a majority of the population, began issuing same-sex marriage licenses, some on their own initiative and others as a result of state district court rulings. The state’s county clerks then unanimously asked the state Supreme Court for a ruling on the issue, and in December the state Supreme Court ruled that marriage licenses must be granted without regard for gender.
In response to the 9th Circuit’s ruling, Nevada Governor Brian Sandoval sought leave to withdraw the State’s brief defending its ban on same-sex marriage in the case of Sevcik v. Sandoval. The 9th Circuit granted his request, and granted an expedited hearing, which–with heightened scrutiny and no legal defense of the law–should be a pro forma striking down of the ban.
A federal judge struck down Utah’s ban on same-sex marriage. The State appealed and asked for a stay of the order and Supreme Court Justice Sonia Sotomayor has granted the stay, meaning no new same-sex marriages until the 10th Circuit hears the appeal. However approximately 1300 such marriages had already been performed, and while Utah’s Governor, Gary Herbert, announced that the State would not recognize them, Attorney General Holder specifically stated that the federal government will.
A federal judge struck down part of Kentucky’s ban on same-sex marriage. Although the state does not have to grant marriage certificates to same-sex couples, it must now recognize same-sex marriages performed in other states. The case concerned only the right of already-married couples to receive recognition, and the judge ruled narrowly on that issue. But he also hinted that if would-be-married couples filed a challenge, the rest of the law probably could not stand.
A federal judge has ruled against Oklahoma’s ban on same-sex marriage. The judge put the ruling on hold until an appeal, but the language of his ruling is important. Contra the 9th Circuit, he appears to have stuck to the rational basis standard, but still found the law failed to clear even that low bar, saying
“the Court’s rationality review reveals Part A an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a government benefit.
In the most recent case to date, Virginia’s ban on same-sex marriage was struck down by a federal judge. The order was stayed pending appeal. Notably, though, the State’s Attorney General chose not to defend the law–reversing his prior position, as a state senator, in support of it–claiming it violated equal protection. Both the judge in her ruling and the Attorney General in interviews compared the ban on same-sex marriage to Virginia’s prior ban on inter-racial marriage, which the Supreme Court struck down in 1967 in the most aptly titled ever Supreme Court case of Loving v. Virginia.
Meanwhile, my beloved home state of Indiana, fumbled its attempts to move forward with a state constitutional ban on same-sex marriage. Amendments have to be approved by successive legislatures than go to the public for a vote. The original proposal, passed in the prior legislature, included a ban on civil unions. That language was stripped out this time by the House, and the Senate declined to restore it, so with the substance of the bill changed, this counts as first passage of a new bill, not second passage of the original bill. So the proposal cannot go to the voters unless it is passed again by the new legislature after the next elections. So it will be at least two years before Indiana could amend its constitution to ban same-sex marriage, by which time I would expect the Supreme Court will have ruled, or be about to rule, on the issue. Two polls of Indiana voters varied widely, with one showing only 34% approved amending the Constitution to ban SSM, and the other showing 53% support. But noticeably, even in this conservative state, at least 40% of the voters oppose banning same-sex marriage.
We’re at the endgame now. Last year, with Windsor and Perry, I was extremely nervous, not at all sure that the Supreme Court would make favorable rulings, and as day after day went by without a ruling, the tension was almost unbearable. But after reading the Windsor decision, I feel very confident now. The Supreme Court will hear one of these cases, if not by next term, definitely by the 2015 term (depending on their speed through the Circuit courts). And in the wake of Windsor, so far every Federal District Court ruling I have seen has been against marriage discrimination–it becomes hard to imagine not winning at the Supreme Court.
This is especially so as the Supreme Court strongly signaled their position in Windsor, as Scalia noted in his dissent.
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “ ‘bare . . . desire to harm’ ” couples in same-sex marriages. … How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status. Consider how easy (inevitable) it is to make the following substitutions in a passage from today’s opinion …
DOMA’sThis state law’s principal effect is to identify a subset of state-sanctioned marriagesconstitutionally protected sexual relationships…and make them unequal…”
The delicious part is that most of those Federal District Court decisions are quoting this part of Scalia’s dissent in their opinions striking down marriage bans. Scalia was dead-right, and he may take some pleasure in that, but to have his oh-so-accurate words purposively used against him must grate. It comes to sound like a deliberate effort to thumb Scalia in the eye, to say, “Why, yes, you’re right, when you stick those words in there it is evident that bans on same-sex marriage are illegitimately discriminatory.” I’m not sure a dissent has ever been used in this way before, to extend the precedential use of the majority opinion. I wonder if Scalia, in his eagerness to criticize his colleages, ever anticipated the role he would end up playing in the legality of same-sex marriage becoming the law of the land?