On June 26, 2013, the ten-year anniversary of the historic Lawrence v. Texas decision, the U.S. Supreme Court issued their much anticipated decisions regarding the constitutionality of DOMA and Prop 8. The Windsor decision, regarding DOMA, is addressed below. The Hollingsworth decision, regarding Prop 8, will be addressed in a separate post to follow.
U.S. v. Windsor, DOMA
In a 5-4 decision written by Justice Kennedy, the Supreme Court held that Section 3 of DOMA was unconstitutional as violating the equal protection and due process rights of same-sex married couples. The Court consistently referred to the States’ exclusive authority to define marriage. However, the Court did not limit its ruling to the federal government’s constitutional overreach in defining marriage on the federal level. Instead, it went further, finding that by taking a state-conferred status away from same-sex married couples based solely on discriminatory animus, DOMA deprived them of the liberty and equal protection guaranteed to them under the Constitution.
Justice Kennedy wrote at length about the over 1000 federal rights, benefits and responsibilities impacted by DOMA, including Social Security, housing, taxes, veterans’ benefits and healthcare benefits, that are withheld from same-sex married couples. However, there were two other themes that stood out within his opinion: dignity through equality and children. He noted that New York had used its exclusive and inherent authority to define marital relations to include same-sex couples and in doing so, “conferred upon them a dignity and status of immense import” and yet, “DOMA seeks to injure the very class of people New York seeks to protect.”
Relying on DOMA’s own text and legislative history, he concluded, “[I]nterference with the equal dignity of same-sex marriages … was more than an incidental effect of [DOMA]. It was its essence. … When New York adopted a law to permit same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective … and writes inequality into the entire United States Code.”
With regard to the children of same-sex families, Justice Kennedy stated, “[DOMA] humiliates tens of thousands of children now being raised by same-sex couples. [It] makes it even more difficult for the children to understand the integrity and closeness of their own family. … It imposes a disability on [these couples] by refusing to acknowledge a status the State finds to be dignified and proper. DOMA 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. [DOMA] is invalid, 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.” Based on these findings, the Court held that Section 3 of DOMA is unconstitutional as a deprivation of equal liberty protected by the Fifth Amendment.
The reference to children is noteworthy because opponents of marriage equality have so often relied on alleged harms to children raised in same-sex families. However, with the Windsor decision, the Supreme Court has somewhat turned that argument on its head. That portion of the opinion is premised on a belief that children in same-sex families are not harmed by their family but by discriminatory laws aimed at their family.
The effect of the Windsor decision in advancing gay rights cannot be overstated. However, it will likely only immediately affect those couples who live in states that have marriage equality. It does not change the current status of same-sex couples joined in civil unions under Colorado law. Colorado’s Amendment 43 currently limits marriage to one man and one woman and will have to be repealed by a vote of the people. The earliest that question can be on the ballot is November 2014.
Whether the Court’s decision to decide the case based on principles of equal protection and due process provides a basis to argue against state-law same-sex marriage bans remains to be seen. Certainly on its face, the Court tailored the ruling to the State’s authority to define marriage, but the opinion and the legal authority upon which the Court chose to rely does not necessarily close the door to the expansion of further rights. It seems certain future courts will be given the opportunity to weigh in on those issues.
Read the opinion in its entirety here.
Note: The DOMA case also included a question of whether the United States had standing to bring the appeal since it actually agreed with the lower court ruling and did not defend the law on appeal. Prior to ruling on the merits, the Court found that because the United States was under an Order from the lower court to refund Ms. Windsor the $350,000+ her late spouse’s estate had paid in taxes, then it had a real and immediate injury as required to establish standing.