The results of the two marriage cases decided June 26 are already shrouded in the mists of history. What I mean is: The struggle over marriage in our society neither began nor will end with these decisions, and those carrying on the fight are arguing already about what these decisions mean for the future. This concern about portents is natural and fair enough. But in the rush to interpret and to prophecy, we risk losing track of what the court actually said.
Let’s start there.
One case is Perry v. Hollingsworth. It is almost universally referred to as the “Prop. 8” case, so named for the California ballot initiative that limited marriage to the union of a man and a woman and which passed after a court there forced marriage to be open to same-sex couples. Prop. 8 thus returned California law to the status quo ante. It was challenged in the courts by same-sex couples who wished to legally marry (as some had during the brief window of opportunity closed by Prop. 8).
After what was truly (no spin here) a bizarre trial, Judge Vaughn Walker held that Proposition 8 was inconsistent with the Constitution’s guarantee of equality for “gay” people, a holding which the local appeals court affirmed and which was then taken to the Supreme Court.
The Supreme Court resolved Perry on procedural grounds. Because the state of California declined to defend Prop. 8 in court (much as the Obama administration declined to defend the federal Defense of Marriage Act in the other marriage case decided on June 26), the lower court allowed the backers of Prop. 8 to appear as defendants. These folks were not public officials. The Supreme Court ruled — plausibly, if not rightly — that they lacked the necessary “standing,” which is a legal term basically about the party’s connection to the lawsuit. The high court effectively nullified the whole prior proceeding.
No one knows for sure what exactly the law in California about marriage is now. Some lawyers say that Prop. 8 is now in place; others say that it is not. Gov. Jerry Brown has jumped in to say that, no matter what, he is going to authorize marriage licenses for same-sex couples. Time will sort it all out. But it is surely true that we are talking only about California. There is no possible effect of the Perry ruling upon any other state.
DOMA Ruling’s Effects
The second case decided June 26, United States v. Windsor, is much more important than the Prop. 8 case. Its immediate practical effects are greater, and its meaning for the future is potentially enormous. It is the focal point of the arguments about portents.
Edith Windsor was party to a same-sex "marriage" recognized by the law of New York. When her partner died, Windsor was obliged to pay an estate tax to the federal government. It was a tax she would have been spared had the Internal Revenue Service recognized the New York marriage. It did not do so, because a 1996 statute stipulated that “marriage” in all corners of national law (such as the one about estate taxes) meant the union of a man and a woman only, even in any state which recognizes same-sex relationships as legal marriages. A couple of men in, say, Rhode Island could file a tax return “jointly” for their state liability. But the Defense of Marriage Act, or DOMA, meant that even they would have to file singly on their federal 1040s.
Windsor challenged DOMA as a violation of her constitutional equality. She won. The basic holding of the Supreme Court was that, in any state where same-sex "marriage" is legally recognized, all the federal benefits which follow marriage flow to these couples as well. Our Rhode Island couple now may file a tax return jointly under state law — and under federal law, too.
The immediate practical effect of Windsor is that, in 12 states and the District of Columbia, all legally married same-sex couples are henceforth eligible for federal treatment on the same terms as all other married couples. At least for the moment, the 38 states which limit marriage to opposite-sex couples retain the constitutional authority to do so.
Justice Anthony Kennedy wrote for the majority in the DOMA case and made this point explicitly: “This opinion and its holding are confined to those lawful marriages” — that is, to those states which have freely chosen to recognize same-sex "marriage" or which may do so in the future. He affirmed repeatedly the “sovereign” authority of all the states to choose between competing understandings of marriage. Let’s call this the “disclaimer.”
Commentators are already deeply split on whether the disclaimer will hold. They split over the implications of Windsor — the disclaimer notwithstanding — for those 38 states. There is a real question here, due first of all to the ambiguity involved in saying that states are “sovereign” over marriage. Is it limited to licensing in-state marriages or does it include recognizing marriages licensed in other states?
The basic problem arises from the fact that, while marriages occur in one place at one time — such as mine, in Cleveland, on Aug. 1, 1981 — married couples are mobile. Justice Antonin Scalia supplied in his dissenting opinion several examples of what can happen: Suppose a same-sex couple married in New York moves to Mississippi. Are they “married” down south on April 15, when they file a 1040? One could say that Mississippi is “sovereign” over marriage within its borders and still maintain that this couple is “married” for federal tax purposes.
Does Windsor naturally lead to the conclusion that legally married same-sex couples carry their federal identity (as married) from one state to another, so that there would be many “married” (federally) same-sex couples, even in, say, Mississippi?
This problem can arise in a simpler form. Let’s leave out the federal government entirely. When a New York same-sex "married" couple moves to, say, Indiana and finds work and sets up a household, are they no longer (legally) married? Again, we are not talking about Indiana having to issue these two folks a marriage license. But do they need one any more than I did when I moved to Indiana? I was married in Ohio and have been treated ever since by other states as, simply, married.
The question is whether Windsor naturally leads to the conclusion that Indiana, for example, has to recognize on equal terms all the marriages of couples from, say, New York. Or may Indiana officials single out Gotham same-sex couples and treat them differently — and, yes, worse — than their opposite-sex counterparts?
It is hard to say.
The Ticking Time Bomb
Windsor is vexing due to more than the ambiguity of key terms. There is a deeper source of its potentially enormous and baleful impact. Windsor might be a time bomb ticking away under marriage in 38 states because its reasoning might defeat its advertised limitation — the disclaimer that federal marriage benefits must be extended only to same-sex couples married in states that legally sanction it.
This is the question commentators are debating today: Does the rationale of Windsor naturally lead to the conclusion that no state may deny the status of marriage to a couple solely on the grounds that they are of the same sex?
Two answers to it were offered yesterday in the Windsor dissents.
Justice Scalia issued a challenge in his dissent that was especially tart, even by his pungent standards: “It takes real cheek for today’s majority to assure us … that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here. … I promise you this: The only thing that will ‘confine’ the court’s holding is its sense of what it can get away with.” The limitation in the majority opinion’s penultimate sentence (the disclaimer) is, he said, a “bald, unreasoned disclaimer.”
Chief Justice John Roberts recognized that there are potentially troubling implications in the majority’s rationale. But one should, he nevertheless said, take those justices at their word, credit the advertised limitation and do what one can to hold the court to it.
My judgment is that the best reading of Windsor lies somewhere in between.
Justice Kennedy means it when he issues the disclaimer. But the driving force of his opinion for the court is, no doubt, these two beliefs: one, that homosexuals and lesbians must never be “demeaned” or “stigmatized” (his words) by the law; and two, that the first belief is required by the Constitution. So far considered, there is nothing about Kennedy’s beliefs that apply only or even especially to the national government but not to the states. Even in our federal system, all government entities must treat people with equal respect.
From Windsor, we can further safely conclude that Kennedy believes that any singling out of homosexuals and lesbians from a class of persons to which they otherwise properly belong is to demean and to stigmatize them, in violation of the Constitution. So he conceptualized the Defense of Marriage Act as one in which Congress took a look at all the couples married in New York and selected out a batch of them — those of the same sex — for adverse treatment.
The decisive question about the future is how Kennedy would conceptualize the actions of any state that limits marriage to opposite-sex couples. Will he see the natural effect of recognizing the conjugal nature of marriage and thus the inherent unsuitability of same-sex couples to marry? Or will he see government discrimination, wherein the state confers dignity upon some but not all couples, qualified for a more modern form of “companionate “marriage (of sexual intimacy, a common home and a core of mutual commitment) — where the sorting criterion is sexual orientation?
No one can say now for sure, not even (I strongly suspect) Anthony Kennedy. It is, however, and, in my judgment, more than likely going to be the latter.
Gerard Bradley is a professor of constitutional law at the University of Notre Dame.