The Impact of Today’s Gay Marriage Decisions

It may be a long time before the effects of today’s gay marriage decisions are fully evident. But it seems clear that they represent important progress for same-sex marriage and gay rights more generally. The DOMA case is also a modest success for those who seek to enforce constitutional limits on federal power.

Obviously, the Court’s invalidation of Section 3 of DOMA in the Windsor case gives married gay couples the same rights under federal law as those now enjoyed by participants in opposite-sex marriages. For now, the effects are limited to people married in the 12 states that currently recognize gay marriage, plus California (which now has to recognize gay marriage as a result of the Court’s decision in the Proposition 8 case). But the number of such states is rapidly growing.

Much of the DOMA decision’s reasoning is based on federalism considerations. That aspect of the ruling will not help future plaintiffs seeking to challenge state laws banning gay marriage. But Justice Kennedy’s opinion for the Court also emphasizes that laws based on “animus” against gays and lesbians are unconstitutional:

DOMA seeks to injure the very class [of married gay couples that] New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). 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.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.

While anti-gay animus is not the only motive for laws banning gay marriage, it is a very important one. Most such laws probably would not have been enacted without it. Therefore, the Court’s reasoning in the DOMA case is likely to help plaintiffs challenging gay marriage bans at the state level. And, after today, more such cases are likely to be filed in many of the 37 states that still refuse to recognize gay marriage. I would have preferred that the Court strike down laws banning or discriminating against gay marriages on the grounds that they are unconstitutional sex discrimination. For a variety of reasons, I think that argument is much stronger than the approach adopted by the Court. But, whatever its soundness, the latter still helps the cause of gay rights.

In Hollingsworth v. Perry, the Court refused to reach the merits of the case challenging the constitutionality of California’s Proposition 8 ban on gay marriage, because it concluded that the supporters of Proposition 8 lacked standing to appeal the trial court’s ruling striking it down. The decision therefore leaves open the question of whether state bans on gay marriage are unconstitutional. But the Hollingsworth still indirectly benefits the cause of gay marriage because it leaves standing Judge Vaughn Walker’s trial court decision striking down Proposition 8. Presumably, that means that gay marriage is now legal in California. District court opinions have very limited significance as legal precedents. But the return of legal gay marriage to the nation’s most populous state is an important practical victory for gay rights, even if it is not much of a legal victory [but see the important qualification of this point in UPDATE #2].

Overall, today’s rulings continue the rapid progress of gay marriage over the last decade, a success which has been significantly aided by court decisions.

The DOMA case is also a success for supporters of constitutional limits on the scope of federal power, even if a limited one. The majority’s reasoning relied heavily on the idea that the definition of marriage is an issue generally left to the states.

UPDATE: I have slightly revised the wording of the third paragraph of this post to make it more clear that some aspects of the Court’s reasoning in the DOMA case (the animus point) will be useful to future plaintiffs challenging state bans on gay marriage, while others (the federalism point) will not.

UPDATE #2: As Marty Lederman explained in this January post, it is not entirely clear whether Judge Walker’s district court opinion striking down Proposition 8 is binding with respect to gay marriages other than those of the plaintiffs in the case. As Lederman points out, both sides in the litigation agree that he intended it to be so binding. But they differ on whether he had the power to do so. The Supreme Court’s opinion in Hollingsworth does not address this question, which could end up being settled by lower court litigation. Lederman also notes that the governor (who opposes Prop 8 and refused to defend it in court) could simply choose not to enforce Proposition 8 in the aftermath of the Supreme Court’s ruling. In practice, therefore, it is quite likely that Proposition 8 will no longer be enforced even if Judge Walker’s ruling isn’t binding beyond the parties to the immediate case.

It’s also worth noting that Justice Kennedy’s dissenting opinion (pg. 12) states that the district court’s ruling will have statewide effect.

UPDATE #3: California Governor Jerry Brown just issued a press release indicating that he has ordered the state Department of Public Health to instruct California’s counties that they must start issuing marriage licenses to same-sex couples as soon as the Ninth Circuit lifts its stay of the district court decision striking down Proposition 8 (which it is bound to do soon)[HT: Andrew Sullivan]. It is highly unlikely that the Governor’s decision will be overturned as a result of future litigation. In practice, therefore, gay marriage is now once again legal in California.

UPDATE #4: In a recent analysis on SCOTUSblog, Marty Lederman concludes that, as a result of the Supreme Court’s decision, gay marriage in California is “here to stay.”