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Topics In the News
The DOMA Decision and the Quest for National Marriage Equality
Posted by: Claude J. Summers on 07/02/13
Last updated on: 07/02/13
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California Attorney General Kamala Harris.

Although the historic Supreme Court decisions handed down on June 26, 2013 are narrowly focused, they may lead to expansive interpretations. By ruling that the proponents of Proposition 8 lacked standing to appeal Judge Vaughn Walker's ruling that California's ban on same-sex marriage is unconstitutional, the Court restored marriage equality to the largest and most influential state. The more sweeping ruling in Windsor declaring the Defense of Marriage Act (DOMA) unconstitutional is pointedly limited to the states in which marriage equality has been achieved. Nevertheless, the Windsor decision is likely to be a powerful weapon in the dismantlement of the state marriage bans that impede the road to marriage equality in the majority of American states.

Matt Coles of the ACLU, in an essay posted on Nan Hunter's Hunter of Justice blog, analyzes the decisions in the cases and concludes that it is clear that the Justices believe that there are not 5 votes--at least, not yet--to strike down state laws that bar same-sex couples from marriage. While the Court struck down the last federal law that explicitly singles gay people out for different treatment, it failed to go beyond that. Moreover, Coles observes that Chief Justice Roberts' dissent in Windsor "is essentially a roadmap for how one could use the 'federalism/states rights' aspects of the majority opinion . . . to defend state laws excluding same-sex couples from marriage."

Still, the rapid response of the Obama Administration to issue new rules and regulations in light of the DOMA ruling is likely to affect all fifty states. Military benefits and immigration regulations, for example, will be extended to all married couples whether they live in Mississippi or Massachusetts.

Perhaps most interesting is the way two federal courts in Michigan have already cited the Windsor decision in cases involving anti-gay laws.

In a case named Bassett v. Snyder, which challenges a Michigan law that prohibits government entities from offering domestic partner benefits to employees, Judge David M. Lawson cited Windsor in enjoining the state from enforcing the law. He declared the law to be discriminatory and a violation of the Equal Protection Clause of the U.S. Constitution because it forces cities, counties, school districts and community colleges to drop family benefits for employees in same-sex relationships.

In his ruling, Lawson said, "the Court takes guidance from the Supreme Court's decision invalidating DOMA, which determined legislative purpose by looking to the 'history of . . . enactment' and the statute's 'own text."

"Looking to the history and text of Public Act 297," Lawson continued, "it is hard to argue with a straight face that the primary purpose--indeed, perhaps the sole purpose--of the statute is other than to deny health benefits to the same-sex partners of public employees. But that 'can never be a legitimate governmental purpose.'"

Judge Lawson issued a preliminary injunction. The case is not over, but in issuing the injunction, he has determined that the plaintiffs are likely to succeed at trial. As a result of the injunction, public school districts and local governments can now begin awarding benefits to same-sex couples and straight couples in domestic partnerships.

In another Michigan case, DeBoer v. Snyder, which challenges the state's marriage and adoption laws, a federal judge has also invoked the Windsor decision.

In denying the state's motion for a summary dismissal of the constitutional challenge, Judge Bernard A. Friedman ruled that the plaintiffs, a same-sex couple who originally sued only to adopt their children jointly, have plausible equal protection and due process claims, and allowed the case to proceed.

However, he acknowledged that both sides can find arguments in the Windsor decision: "The United States Supreme Court's recent decision in United States v. Windsor, No. 12-307 (U.S. Jun. 26, 2013), has provided the requisite precedential fodder for both parties to this litigation. Defendants will no doubt cite to the relevant paragraphs of the majority opinion espousing the state's 'historic and essential authority to define the marital relation.' . . . . On the other hand, plaintiffs are prepared to claim Windsor as their own; their briefs sure to be replete with references to the newly enthroned triumvirate of Romer v. Evans, 517 U.S. 620(1996), Lawrence v. Texas, 539 U.S. 558 (2003) and now Windsor. And why shouldn't they?"

It may be that the Windsor decision will become a potent weapon to dismantle state laws that discriminate against glbtq citizens, including marriage. Justice Kennedy, after all, struck down DOMA because its "principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency."

The logic of the majority opinion in Windsor would also strike down the state DOMAs that were also designed merely to discriminate and make gay people unequal.

In the video below, California Attorney General Kamala Harris discusses the significance of the Supreme Court rulings regarding Proposition 8 and DOMA.

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