July 11, 2013
It was only two weeks ago that the Supreme Court ended its term with the announcement of its decisions in U.S. v. Windsor and Hollingsworth v. Perry, collectively known as the “same-sex marriage cases.”
That same day, I wrote a post analyzing the impact of Windsor – the ruling that struck down Section 3 of the federal Defense of Marriage Act (DOMA), which had previously limited the federal definition of “marriage” to opposite-sex couples.
In the post, I stated that “I would be quite surprised if Windsor isn’t used as precedent in a wave of new legal challenges to the validity of state-level same-sex marriage bans.”
Because Justice Kennedy’s majority opinion based its conclusion primarily on Fifth Amendment equal protection and due process arguments, holding that DOMA’s Section 3 unconstitutionally discriminated against same-sex spouses (living in states where it was recognized).
Even though it has only been two weeks since Windsor was handed down, the first lawsuit in the “wave of new legal challenges” has already been filed.
Even though the lawsuit is challenging only Pennsylvania’s own law, the rest of the nation will be closely watching the outcome of this case. The reason for this is because this challenge is the first to test the post-Windsor waters in state-level DOMA litigation.
Despite the equal protection and due process bases used by Justice Kennedy in Windsor, the actual opinion was anything but clear as to how state-level DOMAs would be impacted by the Court’s holding.
This ambiguity arises from the addition of some federalism principles to the Windsor majority’s rationale. Specifically, the majority opinion held that “’regulation of domestic relations’ is ‘an area that has long been regarded as a virtually exclusive province of the States.’”
So, on the one hand, the Court is saying that the federal government has no right to tell the states how to define marriage; and on the other, it’s saying that the Fifth Amendment’s Due Process and Equal Protection Clauses prohibit treating married same-sex couples differently than opposite-sex couples.
The rub in this is that the Court is effectively saying that the states have the power to define a protected right under the U.S. Constitution – or, at least, it would be, if the very notion of such a power weren’t completely unconstitutional.
Further complicating the ruling is the fact that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights to be made applicable against the states, creating another seeming paradox: the states have the power to define marriage, but limiting marriage to opposite-sex couples runs afoul of the Constitution.
So, how are these contradictions to be resolved? By a legal challenge to a state-level DOMA, like the lawsuit we now have before us.
Naturally, the complaint itself cites to Windsor several times in support of its arguments that Pennsylvania’s DOMA violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
Moreover, it further cites to Windsor in support of the proposition that “the law cannot, directly or indirectly, give effect to private biases and has expressly rejected moral disapproval of marriage for same-sex couples as a legitimate basis for discriminatory treatment of lesbian and gay couples.”
Taking cues from Justice Kennedy’s particular note of the negative human impact that DOMA has on same-sex families, the complaint gives quite detailed accounts of several different same-sex couples.
And the circumstances of the parties are different enough to meet just about any standing threshold: some couples are seeking to be married in the state; some have gotten married in other states and seek recognition within the state of Pennsylvania; and some, including a widow, have been denied benefits that opposite-sex couples enjoy because of their sexual orientation.
In spite of the support that Windsor undoubtedly lends to the plaintiffs’ positions, we can certainly expect the state of Pennsylvania to cite Windsor in its defense of the law, claiming that the ruling stands for the ability of the states to define marriage as they see fit.
Unfortunately for the district court that gets to hear this case, Windsor can be reasonably interpreted to defend the state’s DOMA, leaving the court with a very difficult decision to make.
However the court rules, though, we can expect the losing party to appeal. In addition, there are certain to be lawsuits filed across the country similar to this one.
Pennsylvania is likely just the first of many – indeed, as stated earlier, it’s very likely the first in a wave of new legal challenges to state DOMAs that I predicted would arise two weeks ago.
Eventually one of these challenges will reach the Supreme Court, but it will be several years off at least.
If this also turns out as I predicted, more states will have legalized same-sex marriage by the time the issue once again presents itself to the Court, so many, perhaps, that the number of states with DOMAs still on the books is in the minority.
If that happens, Justice Kennedy will have little reservation about ruling broadly in recognizing a constitutional right to marriage that is enjoyed regardless of sexual orientation – thus legalizing same-sex marriage nationwide.
Given the potential consequences of this and potential future challenges, it’s no wonder that this case will be watched with great interest by the nation at large.