Supremes strike down Defense of Marriage Act

The Supreme Court struck down the Defense of Marriage Act today. (photo: AP) 

By Josh Gerstein, Politico

26 June 13

he Supreme Court Wednesday struck down the Defense of Marriage Act, the ban on federal benefits for same-sex married couples, on a 5-4 vote. Justice Anthony Kennedy, writing for himself and the court’s liberals, finds that the 1996 law is unconstitutional.

But in a 5-4 decision that crossed ideological lines, the Supreme Court Wednesday declined to rule on the merits of Proposition 8, California’s voter-approved ban on same-sex marriage.

DOMA, passed by Congress in 1996, "violates basic due process and equal protection principles applicable to the federal government," Kennedy wrote. The majority opinion also criticizes DOMA as an intrusion on states’ traditional role defining marriage.

"DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition," Kennedy added.

He said that the law "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 federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom that State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those person as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."

However, the majority opinion in the DOMA matter nodded to the less than sweeping ruling in the Prop 8 case.

"This opinion and its holding are confined to those lawful marriages," Kennedy wrote, appearing to refer to those authorized by the state of New York.

The conservative justices dissented from the DOMA ruling, but disagreed about whether Congress - in this instance really the House of Representatives - had the right to bring the case to the Supreme Court.

Roberts, Scalia and Thomas said they would have ruled that the dispute was not properly before the court, because Congress had no right to appeal lower court decisions when the Obama administration stopped defending DOMA.

Justice Samuel Alito disagreed, saying Congress did have that power.

On Prop. 8, Chief Justice John Roberts wrote for the court’s majority that the private proponents of the measure did not have standing to defend the measure in federal courts. The decision vacates the appeals court ruling holding the measure unconstitutional, but appears to leave intact a district judge’s ruling that also found the measure unconstitutional.

Conservative Justice Antonin Scalia joined with Roberts, as did liberal Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. Justice Anthony Kennedy dissented with conservative Justices Clarence Thomas and Samuel Alito, as well as liberal Justice Sonia Sotomayor.

The ruling is likely to result in same-sex marriages going forward in California, but additional litigation is expected about the scope and validity of the district court’s ruling.

Prop. 8 passed 52 percent to 48 percent in November 2008, effectively blocking moves by San Francisco Mayor Gavin Newsom and other local officials to issue marriage licenses to gay and lesbian couples. Future President Barack Obama prevailed in the Golden State on the same ballot, 61 percent to 37 percent, over GOP presidential nominee Sen. John McCain.

Public opinion on same-sex marriage has shifted dramatically in the country in recent years, with the number of Americans supporting what advocates call "marriage equality" surging in polls. When DOMA passed in 1996, only about a quarter of Americans backed the legal recognition for same-sex marriages. In 2009, when Prop. 8 opponents launched their legal challenge, the number was around 40 percent. Now, a majority now appears to support legal recognition for the concept.

Gay rights activists believed a ruling striking down DOMA could be a hugely significant victory, not simply because it would end federal discrimination against married couples of the same sex, but because the legal rationale of such a ruling could undermine virtually any state or local measures which limit the rights of gays and lesbians.

Some lawyers and analysts hoped that the high court’s DOMA opinion would declare that all categorization by the government based on sexual orientation is inherently suspect and should be subjected to "heightened scrutiny" - a kind of judicial review that would leave gay-marriage bans nationwide vulnerable to legal attack.

The Obama administration urged the justices to strike down DOMA as unconstitutional. In 2011, Attorney General Eric Holder announced that he and Obama had agreed that the Justice Department should no longer defend the law. That triggered howls of outrage from some conservatives, and prompted House leaders to hire prominent Supreme Court litigator Paul Clement to fight to keep the measure on the books.

The administration took a more nuanced position in the Prop. 8 case. As it worked its way through the lower courts, the Justice Department steered clear of the dispute.

After the Supreme Court agreed to hear the matter, the Justice Department urged the justices that they overturn same-sex marriage bans in California and seven other states that grant same-sex couples all or nearly all the rights of marriage but deny them the right to be officially married. In a legal brief filed in February, the administration argued that there was no legitimate justification for denying the legal status of marriage to couples that had the same privileges and obligations in every other respect.

By steering clear of a broad assault on same-sex marriage bans nationwide, the administration’s argument appeared to be carefully crafted to appeal to Justice Anthony Kennedy’s longtime interest in respecting state sovereignty.

However, during oral arguments in March, the Justice Department’s stance got a skeptical reception from liberal and conservative justices who said they found it odd to conclude that states which had done the most to accommodate gay couples would be forced to allow gays and lesbians to marry, while states that had done less or nothing to assist such couples would not.

Two California governors, former Gov. Arnold Schwarzenegger and current Gov. Jerry Brown, both refused to defend Prop. 8 in court. A federal district judge, the California Supreme Court and the U.S. Court of Appeals for the 9th Circuit all allowed proponents of the ballot measure to fight the legal challenge.

Both the district court and the appeals court threw out Prop. 8 as unconstitutional, though on slightly different grounds.

However, when the justices accepted the case last year, they asked the parties to add to their briefs and arguments to a discussion of whether the forces opposing same-sex marriage had legal standing to participate in the case, given that the key state officials declined to contest the lawsuit.