Jun. 26th, 2013

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Ok, so here are the Supreme Court's decisions in U.S. v. Windsor (PDF) and Hollingsworth v. Perry (PDF).

Windsor: This is a case involving Section 3 of DOMA, a federal law. Section 3 defines marriage as between one woman and one man, for the purposes of "any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States." The Court held, 5-4 (Kennedy, Ginsburg, Sotomayor, Breyer, Kagan, with Roberts, Scalia, and Alito filing dissenting opinions, and Thomas joining Scalia's dissent and part of Alito's), that DOMA violates the Equal Protection Clause of the 14th Amendment, which is applied to the federal government by the Due Process Clause of the 5th Amendment. What this means is that at the federal level, same-sex marriages are recognized as marriages. So for the purposes of federal tax returns, immigration (i.e. sponsoring a foreign same-sex spouse for immigration), and other federal laws or regulations affecting marriages, same-sex marriages are valid.

Prior to today, married couples in states where same-sex marriage was legal were in the weird position of being treated as a married couple by the state, but not by the federal government. This situation was epitomized of having to do all your taxes as a married couple in order to file your state tax returns, and then do them all as single individuals for your federal tax returns. For couples who live in states where same-sex marriage is not legal, they are now in the reverse situation, where their marriage is recognized at the federal level but not the state level (so, still have to file two sets of tax returns). For couples who live in states where same-sex marriage is legal, they are now recognized as legally married by their state and the federal government. DOMA Section 2, which provides that no state has to recognize a same-sex marriage performed out of state unless it chooses to, contrary to the Full Faith & Credit clause of the Constitution, still stands. So states that have passed laws explicitly refusing to recognize out-of-state same-sex marriages still do not recognize same-sex marriages when it comes to state laws and state-administered benefits. Kennedy's opinion explicitly points that out: "The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. . . . This opinion and its holding are confined to those lawful marriages." (emphasis added).

Perry: This decision was decided on standing, a procedural question. To explain this, we need a short history of the Perry litigation. Back in Nov. 2008, the day after Prop. 8 passed, same-sex couples that could no longer get married filed a lawsuit against the state of California, as represented by then-governor Schwarzenegger, arguing that Prop. 8 was unconstitutional under the 14th Amendment Due Process and Equal Protection Clauses. The Northern District of California, a federal trial court, ruled that Prop. 8 was indeed unconstitutional and enjoined its enforcement. CA chose not to appeal, at which point the proponents of Prop. 8 chose to intervene and filed an appeal.

In lawsuits, standing means you have the right to sue. This right is typically limited to parties who are injured by a law or action. In the NDCA case, the plaintiffs had standing--the right to sue--because Prop. 8 affected their civil rights. In the 9th Circuit case, it was unclear whether the official proponents of the Prop. 8 ballot initiative had the right to appeal the decision, since the case didn't really affect them. They were not harmed, in any way, by the district court's ruling, because the legality of same-sex marriage didn't affect their rights. The government would have had standing, had it chosen to appeal, because the decision affected a state law (state constitution, actually).

The 9th Circuit thought that the question of whether the backers of Prop. 8, as represented by Hollingsworth (the named party in the case), had standing was a question of state law, not federal law, and so they certified the standing question to the CA Supreme Court (basically, they sent the issue to the CA SC and said, "Hey, can you resolve this issue of state law for us? Kthxbai."). The CA Supreme Court said yes, Hollingsworth had standing, because the backers of the ballot initiative have a substantial interest in what happens to that initiative even after it becomes law (this is a significantly abbreviated version of what the court decided), and so the 9th Circuit ruled that Hollingsworth had standing to appeal the NDCA ruling, and then upheld the NDCA ruling that Prop. 8 was unconstitutional.

The Supreme Court disagreed 5-4 (Robert, Scalia, Ginsburg, Breyer, Kagan in the majority, with Kennedy filing a dissent joined by Thomas, Alito, and Sotomayor) with the 9th Circuit. Roberts' opinion holds that Hollingsworth did not have standing to appeal the NCDA decision, since they, the Prop. 8 backers, did not suffer any personal injury from that decision. SCOTUS made this decision purely on procedural grounds, without proceeding to the merits of the case. In other words, the opinion does not actually consider whether Prop. 8 violates the Equal Protection Clause, it just says that Hollingsworth didn't have the right to sue/appeal to begin with, and the 9th Circuit was wrong in that respect and shouldn't have considered the merits of the case at all. SCOTUS vacated the 9th Circuit's opinion and remanded the case back to the 9th Circuit with instructions to dismiss the appeal. What this means is that the 9th Circuit opinion is now gone, but the Northern District's opinion holding Prop. 8 unconstitutional still stands. Thus, same-sex marriage is now legal again in California. In combination with Windsor, the Perry ruling means that same-sex marriages in California are valid at both the state and federal levels. Just don't move or travel to a state that refuses to recognize same-sex marriages. Perry does not affect same-sex marriage bans anywhere outside California.

The dissent in Perry did not touch on the merits of the case, either. The lineup of dissenters may look bizarre if you're used to thinking of the Court in terms of liberal v. conservative, but the dissent was actually about federal court deference to state courts on issues of state law. Kennedy's dissent argues that while the question of Prop. 8's constitutionality is a federal question, the question of whether Hollingsworth could stand in the position of the state of California and appeal the NCDA decision is an issue of state law, not federal law. The CA Supreme Court ruled on that issue, and so SCOTUS, like the 9th Circuit, should defer to the CA Supreme Court's decision, which was based on California laws about standing, instead of applying federal law about standing. The dissent argued that this is particularly the case given that Prop. 8 was passed by voter initiative:
"In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability."
In short, Windsor means that same-sex couples that were married in states or countries recognizing same-sex marriages will receive all the federal benefits of marriage, and Perry means that same-sex marriage is valid in California. No more and no less. What Perry means for standing in other, non-marriage equality cases, remains to be seen, and on that topic, I am unsure if this will be a good decision in the long run.


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