WASHINGTON — When the U.S. Supreme Court struck down part of the federal Defense of Marriage Act (DOMA) last June, legal scholars expected no further ruling from the justices on this issue for some years.
Yet now, in the wake of several lower-court decisions overturning state laws banning same-sex “marriage,” as well as a growing federal push for “marriage equality,” experts predict the high court may decide another landmark case by 2015.
“The court could hear another case — more likely, two or more appeals to court decisions in favor of same-sex ‘marriage' — next term; and, thus, issue a decision by June 2015,” Gerard Bradley, a professor at the University of Notre Dame Law School, told the Register.
Legal experts on both sides of the issue say that Justice Anthony Kennedy’s majority opinion in United States v. Windsor, which found that DOMA denied legally married same-sex couples equal protection under the law, paved the way for the latest round of lower-court decisions overturning state bans on same-sex “marriage,” despite the fact that the high court had upheld the sovereignty of state laws governing marriage.
In Windsor, Justice Kennedy wrote that the federal law expressed an irrational and unlawful animus toward persons with same-sex attraction.
“The Constitution’s guarantee of equality must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group,” stated Kennedy.
Justice Antonin Scalia, in his stinging dissent to the majority opinion, warned that it would have far-reaching consequences for the nation’s marriage laws.
“It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here — when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’ hateful moral judgment against it,” Scalia wrote at the time.
“I promise you this,” he continued. “The only thing that will ‘confine’ the court’s holding is its sense of what it can get away with.”
State Laws Under Attack
Over the past two months, federal judges in Virginia, Oklahoma and Utah issued decisions that found state amendments defining marriage as the union of a man and a woman to be unconstitutional, while rulings in Kentucky and Ohio signaled that such laws may not survive for long.
“Government interests in perpetuating traditions, shielding state matters from federal interference and favoring one model of parenting over others must yield to this country’s cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family,” stated Judge Arenda Wright Allen in her ruling that overturned Virginia’s amendment, though the federal judge also issued a stay pending an appeal.
Brian Brown, president of the National Organization for Marriage, attacked Judge Wright's ruling in a post on National Review Online.
Judge Allen, said Brown, "became the third Obama-appointed federal judge in recent weeks to invalidate state marriage amendments adopted by overwhelming majorities of state voters. Her decision, like those in Utah and Oklahoma before it, is wrong as a matter of principle, precedent, and logic. It should be reversed."
However, Notre Dame’s Bradley acknowledged that he was “surprised at the speed with which lower federal courts have run with the ‘spirit of Windsor,’ ignoring its rule of decision in favor of state sovereignty” with regard to laws governing marriage.
In Windsor, the majority opinion stated: “The definition of marriage is the foundation of the state’s broader authority to regulate the subject of domestic relations. ... Consistent with this allocation of authority, the federal government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”
William Duncan, director of the Marriage Law Foundation based in Washington, told the Register that the recent spate of court rulings underscored the Supreme Court’s game-changing role in advancing the debate on sensitive cultural and social issues.
“The tempo has increased because lower-court judges who would like to push the envelope on nationalizing same-sex marriage believe Justice Kennedy is open to that result,” said Duncan. “Something similar happened in 1972 [when the Roe case was first filed], when the Supreme Court said there was a right to choose whether or not to have a child, and a couple of courts rushed to strike down abortion laws.”
It is not yet clear which marriage cases winding their way through the courts are most likely to secure a review during the Supreme Court’s next term.
Duncan said the high court will probably focus on disagreements among the appeals courts on the constitutionality of marriage laws that bar same-sex couples.
“If the 9th Circuit says same-sex marriage is required in California, Nevada, etc., and the 10th or 4th Circuit say it’s not in their area, the court is likely to step in to settle the disagreement,” said Duncan.
“If the appeals courts all go the same way, the court might just wait to take a case,” he predicted.
Backed by the Administration
But the Obama administration’s strong advocacy for “marriage equality” has introduced a further complication to that calculus.
On Feb. 10, Attorney General Eric Holder announced additional regulations that would govern the Department of Justice’s policies for dealing with individuals who were legally married to same-sex spouses anywhere in the U.S. or abroad.
Department of Justice employees were directed to ensure “equal treatment for same-sex married couples” in prison visitation and court proceedings, among other settings, even if the state of residence did not recognize such marriages.
During a recent address at a dinner hosted by the Human Rights Campaign, the nation’s leading advocate for the redefinition of marriage, Holder presented the new regulations as a moral response to a long history of discrimination based on sexual orientation, and he equated the struggle for marriage equality with the civil-rights movement for racial equality.
“The department will recognize that same-sex spouses of individuals involved in civil and criminal cases should have the same legal rights as all other married couples — including the right to decline to give testimony that might incriminate their spouse,” Holder stated.
The Department of Justice’s policy change follows on the heels of new regulations governing the treatment of same-sex married couples at the Department of Defense, the Internal Revenue Service and the Departments of State and Education.
The regulations have placed additional pressure on states that oppose recognition of same-sex “marriage” in their marriage laws. And some experts see the administration’s aggressive policy as a tactic that will force states to retreat from their defense of traditional marriage.
A growing number of state attorneys general have already refused to enforce state marriage laws barring same-sex couples, while Alaska Attorney General Michael Geraghty recently vowed to uphold Alaska's ban.
Indiana Bill Fails
This week, Indiana lawmakers failed to approve proposed legislation that would have led to a ban on same-sex “marriage” in the Indiana Constitution, and homosexual-rights activists marked the impasse as a win.
“You start to get the feeling a lot of people in the legislature just don’t want to deal with this again — don’t have the appetite,” Megan Robertson, campaign manager for Freedom Indiana, a state group backed by Eli Lilly and Co., which opposed the ban, told The New York Times.
Same-sex “marriage” still isn’t legal in Indiana, and the majority of lawmakers approved part of the measure. But the same language had easily passed the last time it was introduced, and so the failure to secure the second step in a required two-step process appeared to reveal a growing unease among GOP lawmakers.
Glenn Tebbe, the executive director of the Indiana Catholic Conference, confirmed that business interests were a major factor in stopping the legislation.
“Some corporations and other business groups were opposed to the amendment because they thought it provided the wrong message about what Indiana is [to potential employees and companies],” Tebbe told the Register.
The White House will likely introduce additional regulations that equate the legal marriages of same-sex couples with those formed by opposite-sex couples, keeping the pressure on states as cultural norms continue to shift on this issue.
Opponents Plan to Persevere
For now, those who want to halt the Obama administration’s campaign for marriage equality have turned to Congress, endorsing the State Defense of Marriage Act, which was introduced in the House last month by Rep. Randy Weber, R-Texas, and in the Senate on Feb. 12 by Sens. Ted Cruz, R-Texas, and Mike Lee, R-Utah.
“Under President Obama, the federal government has tried to redefine marriage and to undermine the constitutional authority of each state to define marriage consistent with the values of its citizens. The Obama administration should not be trying to force gay marriage on all 50 states," said Sen. Cruz in a Feb. 13 statement.
The U.S. bishops have endorsed the State Marriage Defense Act. On Feb. 19, Archbishop Salvatore Cordileone of San Francisco, the bishops' point man on marriage, also backed the federal Marriage Protection Amendment (H. J. Res. 51) introduced by Rep. Tim Huelskamp, R-Kan.
“The amendment would secure in law throughout the country the basic truth known to reason that marriage is the union of one man and one woman,” Archbishop Cordileone said in a Feb. 19 letter to Huelskamp.
But it will be tough for the measure’s sponsors to gain traction on Capitol Hill, as lawmakers ready themselves for another decision by the high court on marriage.
In a Feb. 6 commentary on The Public Discourse website, Sherif Girgis, co-author of What Is Marriage? Man and Woman: A Defense, acknowledged the headwinds facing opponents of marriage equality, but urged perseverance.
“While the spirit of the Supreme Court’s recent decision striking down DOMA’s federal definition of marriage gives liberalizing judges all the premises they need to remake state marriage laws, it doesn’t require this,” Girgis concluded.
“Might [the court] flinch from imposing redefinition if it fears the fury of a vibrant marriage movement? The answer depends not on impersonal currents of history but on what we do. That is why continued argument and advocacy on the whole range of marriage and family issues — including this one — remain crucial.”
Joan Frawley Desmond is the Register’s senior editor.