Wednesday, June 26, 2013

The U.S. Supreme Court on gay marriage, in a nutshell

MGR Legal Analysis - Two landmark cases decided this morning by nation's highest tribunal

*Update below Jan. 6, 2014*
United States v. Windsor, # 12-307
This case tested the constitutionality of the federal Defense of Marriage Act (DOMA), 110 Stat. 2419, which was passed by Congress in 1996. The Act defined marriage as "a legal union between one man and one woman as husband and wife." In 2007 Edith Windsor and Thea Spyer, residents of New York, got married in Toronto, a union which was recognized by their home state. When Spyer died in 2009 Windsor had to pay more than $363,000 in federal estate taxes on her inheritance. If federal law had recognized their marriage she would have had no tax obligation. Windsor sued the United States for a refund, seeking a determination that DOMA violated the equal protection of the law guarantees of the Fifth Amendment to the constitution. Lower courts ruled in her favor. Today the Supreme Court did likewise. Excerpts from the opinion:

"DOMA violates basic due process and equal protection principles applicable to the federal government. Its unusual deviation from the tradition of recognizing and accepting state definitions of marriage operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of a class recognized and protected by state law. DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

"DOMA’s history of enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. DOMA’s operation in practice confirms this purpose. It frustrates New York’s objective of eliminating inequality by writing inequality into the entire United States Code.

"DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect."

The Supreme Court noted in its opinion that the U.S. Treasury still has not refunded Edith Windsor's tax overpayment, despite two previous court orders. It will have to do so now.

Hollingsworth v. Perry, # 12-144
This case dealt with California Proposition 8, approved by state voters in November 2008. That citizen initiative overturned a California Supreme Court decision earlier the same year which found that same-sex couples had a constitutional right to marry. In response, gay marriage proponents sued the state in federal court, and demanded that Proposition 8 - which defined marriage as a union only between a man and a woman - be declared null and void. In August 2010 a district court judge agreed with the plaintiffs and struck down the proposition. In February 2012 his decision was affirmed by the federal Court of Appeals for the Ninth Circuit in San Francisco. Both rulings held that the state's popular and frequently employed proposition procedures could never be used to take away fundamental rights after the fact, once a court has found that those rights are guaranteed by the state's constitution. But today the U.S. Supreme Court dismissed the entire appeal on a technical jurisdictional point, finding that key parties who brought the case to the Court (supporters and defenders of Proposition 8) lacked legal "standing" - the right to participate as litigants in the controversy.

The case will return to lower courts for further proceedings. Read the decision here. In the meantime, gay marriage is arguably legal in California, since Proposition 8 remains a nullity. But the battle is far from over, and further complex proceedings could easily drag on for years.

June 28 - Late today the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, issued a brief order confirming that Proposition 8's ban on same sex marriage is now dissolved. County registrars throughout California may begin issuing marriage licenses to same sex couples immediately.

Core analysis: The Supreme Court had the opportunity in either or both cases to declare that same sex marriage is a matter of fundamental U.S. constitutional right. It declined to do so. The definition of marriage and who may enter into it remain for each state to decide. States which have prohibited same sex marriage by statute or constitutional amendment will not be directly impacted by today's long awaited rulings. But federal agencies and departments will be required to recognize - and to not discriminate against in any way - same sex unions which were entered into in those states where it is lawful. In sum, marriage for now remains primarily a matter of state law, reflecting the arguable intent of the American constitution's framers to allow legislative and social experimentation at the local level. That division of responsibility between a central governing authority and semi-autonomous constituent political units is known in the United States, and in some other countries, as federalism.

Currently 13 U.S. states recognize same sex marriage, while 37 do not. The latest two are Minnesota and Rhode Island.

President Obama released a statement shortly after the rulings, saying he had directed all cabinet officials and heads of federal departments to begin an immediate review of laws and administrative regulations which may discriminate against same sex couples. He promised they would be amended or rescinded as quickly as possible, to comply with the Supreme Court's decision in U.S. v. Windsor.

Many critical legal issues remain unresolved by today's rulings. The federal constitution of the United States contains a unique provision called the Full Faith and Credit Clause (FFCC), which provides that each of the 50 states must respect the "public acts, records, and judicial proceedings of every other state." New York recognizes gay marriage, but Missouri does not. Is Missouri thus obligated under the FFCC to recognize the marriage of a gay New York couple who later move to Missouri? The issue is far from theoretical, and has innumerable practical consequences for the parties to the union. Property ownership, health and life insurance entitlements, medical care, end-of-life decision-making, employment benefits, tax obligations and rights of inheritance under state law are but a few of the crucial legal questions which are heavily dependent upon one's marital status. They remain open.

In a landmark 2002 decision foreshadowing the complexity of the problem, the Kansas Supreme Court ruled that "A post-operative male-to-female transsexual is not a woman within the meaning of [Kansas law] and cannot validly marry another man." This was true even though the transsexual had received gender reassignment surgery years earlier, and had been granted a new birth certificate in Wisconsin indicating that her sex was female. In the Matter of the Estate of Gardiner, 273 Kan. 191, 42 P.3d 120 (2002). The same type of issues could easily arise in the gay marriage context.

Nov. 14 - Missouri to accept joint tax returns from gay couples
Nov. 20 - Illinois today became the 16th state to legalize gay marriage

Jan. 6, 2014 - Since this article was written six months ago, gay marriage litigation issues have kept lots of lawyers and judges busy across the nation. There are now 17 U.S. states which have legalized it by statute or constitutional amendment. Several weeks ago a Salt Lake City federal judge ruled that Utah's prohibition of same sex unions violated the Equal Protection Clause of the constitution. The state immediately appealed that ruling to the U.S. Court of Appeals for the Tenth Circuit in Denver, which agreed to hear the case on an expedited basis, but refused to stay the lower court's ruling in the meantime. As a result, dozens of Utah county marriage registrars across the state began issuing licenses to same sex couples, after being warned by the district court judge that they could be held in contempt of court if they refused to do so. Utah's attorney general appealed one more time to the U.S. Supreme Court, his last hope in an effort to placate the state's huge, ultra-conservative Mormon population. It paid off. This morning the Supreme Court stayed the Salt Lake City judge's order until the 10th Circuit rules on the matter later this year. For the time being no more same sex marriage licenses will be issued in Utah, leaving open this question: are the hundreds of gay couples which have wed there in recent days married or not? Supreme Court halts same-sex marriages in Utah

In sharp contrast to the U.S., the Supreme Judicial Court of Mexico is moving rapidly towards the legalization of same sex marriage nationwide, as a matter of federal constitutional guarantee. The Court has issued several decisions since 2012 stating that the recognition of gay unions by state authorities is a fundamental human right. Mexico's court has been extremely proactive on gay and lesbian matters. In March judicial ministers ruled that anti-gay comments are hate speech, not free speech, and are not legally protected.

Kentucky must recognize gay marriages from other states (The Washington Post, Feb. 12, 2014)
U.S. State Dept. will grant marriage visas to gay partners
Yucatecans not ready for gay marriage, says chief judge
Same sex marriage arrives at the U.S. Supreme Court - and at the Mexican Supreme Court
Mexico's Supreme Court takes another step towards nationwide recognition of gay marriage
Yucatán federal court orders recognition of gay marriage
U.S. court finds evidence of "fundamental changes in the treatment of gays in Mexico"
Mexican Supreme Court rejects HIV discrimination case

© MGRR 2013. All rights reserved. This article may be cited or briefly quoted with proper attribution or a hyperlink, but not reproduced without permission.

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