LGBT in OT 2012: The impact of a Supreme Court decision in Windsor v. U.S (part 2)

November 14, 2012

Supreme Court GLBT(Editor’s note: With the reelection of President Barack Obama and the legalization of same-sex marriage in three states during the same night, 2012 is shaping up to be a significant year for LGBT rights.  With many cases involving such rights seeking review before the Supreme Court, it may also be a significant term at the Court.  Throughout the month of November, Westlaw Insider will be looking at these cases, and how a Supreme Court ruling could impact the nation.)

Week 1: The impact of a Supreme Court decision in Windsor v. U.S (part 1)

Last week, I discussed the implications of a Supreme Court ruling upholding the Second Circuit’s in Windsor v. U.S., a challenge to Section 3 of the Defense of Marriage Act (DOMA).

I concluded that, should the Court affirm the appeals court and Section 4 of DOMA is invalidated, the immediate impact would be the extension of federal benefits (e.g. Social Security, Medicare, tax benefits) to same-sex spouses.

But I also made several inferences that the impact of such a ruling would extend farther than this.

And it would: a Supreme Court affirmation of Windsor v. U.S. would lead to the demise of all state laws banning same-sex marriage.

It may not happen immediately, but it wouldn’t take more than a few years, and here’s how:

Presumably, SCOTUS will affirm Windsor by using the same logic as used by the Second Circuit: laws that discriminate on the basis of sexual orientation must survive intermediate scrutiny in an equal protection analysis.

As stated last week, this is a major legal development, in that it, for the first time, requires the government to provide actual justification for these laws.

Perhaps more significant is that the Second Circuit explicitly declared that proposed justifications such as “the protection of traditional marriage” and “the encouragement of ‘responsible’ procreation” are insufficient under an intermediate scrutiny analysis.

These are generally the same justifications used by individual states to defend their respective bans on same-sex marriage.

Thus, unless states can come up with some new reasons that are much more persuasive, every state’s ban on same-sex marriage – regardless of whether it is a part of the state’s constitution – would be ruled unconstitutional.

Although it’s possible that a Supreme Court Windsor ruling would explicitly strike down these state bans, it’s unlikely.

Instead, the Court will likely only narrowly affirm Windsor – striking down Section 3 of DOMA and broadening “intermediate scrutiny” to apply to laws discriminating on the basis of sexual orientation.

Even this would be enough, though: a Supreme Court Windsor ruling such as this would set precedent for challenges to every state same-sex marriage ban.

And, like I said above, unless states can come up with better justifications than “protection of traditional marriage” and “the encouragement of ‘responsible’ procreation,” virtually every challenge is going to succeed.

Nevertheless, it’s entirely conceivable that some conservatives on the Court will foresee this eventuality and seek to explicitly write the opinion in such a way that forecloses any possibility of such (i.e. hold that Baker v. Nelson is still good law (see the previous post for more on this)).

This would still only be delaying the inevitable.

Even with a sexual orientation/intermediate scrutiny analysis that only applied to federal laws (I’m still not entirely sure how this would legally work), DOMA’s Section 2, a federal law that discriminates on the basis of sexual orientation, would quickly be next on the chopping block.

Quick refresher: Section 2 allows individual states to bypass the Constitution’s Full Faith and Credit Clause and allows states to completely disregard marriage licenses issued to same-sex couples in other states.

Section 2 may survive SCOTUS’s Windsor ruling, but, if it does, it wouldn’t survive long thereafter (it’s possible that the provision’s defenders can come up with a new justification based around something like “states’ rights,” but for reasons I’ll get into later, it won’t survive intermediate scrutiny).

When Section 2 is gone, individual states will be required by the Full Faith and Credit Clause to recognize same-sex marriage licenses issued in other states – meaning that they will have to extend the same legal benefits to same-sex spouses that opposite-sex spouses currently enjoy.

It’s true that, under this scenario, no state will be required by the federal government to issue same-sex marriage licenses – a fact that will make any “state’s rights” arguments fail under an intermediate scrutiny analysis in legal challenges to DOMA’s Section 2.

Nevertheless, it would be in each state’s best interests to begin to issue same-sex marriage licenses.

Why?

Think of it this way: if only a handful of states are issuing same-sex marriage licenses, but every state is required to recognize them, how many millions of people will flock to these select states to have their weddings?

How many billions of dollars would these states’ economies suddenly reap from all of these additional weddings?

Probably enough to make many states re-think their bans on same-sex marriage – since that money is out of their own pockets.

Granted, many states won’t change their laws (some because the economic incentives won’t be enough, others because a state constitutional amendment is very difficult to reverse).

Regardless, enough states will change their laws that the states that refuse to issue same-sex marriage licenses will be a distinct minority (and even those states will be required to recognize same-sex marriages from other states).

Although same-sex advocates would probably prefer the earlier described scenario in which state same-sex marriage bans are universally struck down, a Supreme Court affirmation of Windsor v. U.S. would effectively legalize same-sex marriage nationwide.

But we’ll find out for sure how the decision shakes down if and when the Supreme Court hears and rules on the case.