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Supreme Court Could Make History on Same-Sex Marriage, or Not Supreme Court Bolsters Gay Marriage With Two Major Rulings
(about 9 hours later)
WASHINGTON — It is usually impossible to say when the Supreme Court will announce any particular decision. There is one exception: On the last day of the term, when the court takes action on every remaining case, the process of elimination supplies the answer. WASHINGTON — In a pair of major victories for the gay rights movement, the Supreme Court on Wednesday ruled that married same-sex couples were entitled to federal benefits and, by declining to decide a case from California, effectively allowed same-sex marriages there.
The last day of the term is Wednesday. The court has yet to issue decisions in two momentous cases on same-sex marriage. The rulings leave in place laws banning same-sex marriage around the nation, and the court declined to say whether there was a constitutional right to same-sex marriage. But in clearing the way for same-sex marriage in California, the nation’s most populous state, the court effectively increased to 13 the number of states that allow such unions.
Those facts in combination mean that shortly after 10 a.m. the justices will announce their rulings on challenges to two laws that define marriage to include only unions of a man and a woman. The decision on federal benefits will immediately extend many benefits to couples in the states where same-sex marriage is legal, and it will give the Obama administration the ability to broaden other benefits through executive actions.
One case, from New York, concerns the federal Defense of Marriage Act of 1996, which denies federal benefits to gay and lesbian couples married in states that allow such unions. The case concerning California’s ban on same-sex marriage, Proposition 8, was decided on technical grounds, with the majority saying that it was not properly before the court. Because officials in California had declined to appeal a trial court’s decision against them and because the proponents of Proposition 8 were not entitled to step into the state’s shoes to appeal the decision, the court said, it was powerless to issue a decision. That left in place a trial court victory for two same-sex couples who had sought to marry.
The other, from California, challenges Proposition 8, the state’s ban on same-sex marriage. The decision on the federal law was 5 to 4, with Justice Anthony M. Kennedy writing the majority opinion, which the four liberal-leaning justices joined.
The rulings will come against the backdrop of a rapid shift in public attitudes about same-sex marriage, with recent polls indicating that a majority of Americans support allowing such unions. When the justices heard arguments in the two cases in March, nine states and the District of Columbia had laws allowing same-sex marriage. Since then, three more states have enacted such laws. “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” Justice Kennedy wrote. “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”
The New York case, United States v. Windsor, No. 12-307, challenges the part of the 1996 law that defines marriage as between only a man and a woman for the purposes of more than 1,000 federal laws and programs. (Another part of the law, not before the court, says that states need not recognize same-sex marriages from other states.) Chief Justice John G. Roberts Jr. was in the minority, as were Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.
The case concerns two New York City women, Edith Windsor and Thea Clara Spyer, who married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor inherited her property. The 1996 law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of about $360,000 that would not have applied to a spouse in an opposite-sex marriage. The ruling overturned the Defense of Marriage Act, which passed with bipartisan support and which President Bill Clinton signed.
Ms. Windsor sued, and last year the United States Court of Appeals for the Second Circuit, in New York, struck down the 1996 law. The decision will raise a series of major questions for the Obama administration about how aggressively to overhaul references to marriage throughout the many volumes that lay out the laws of the United States.
Should the justices strike down the law, married same-sex couples would start to receive federal benefits. Should they uphold the law, the current state of affairs for married same-sex couples – Justice Ruth Bader Ginsburg called it “skim milk marriage” when the case was argued in March – would continue. The five-member majority in the California case was different from the one in the Defense of Marriage case, in a sign that the California case was less straightforward. Chief Justice Roberts wrote the majority opinion, joined by Justice Scalia, Justice Ruth Bader Ginsburg, Justice Stephen G. Breyer and Justice Elena Kagan.
No ruling in the case on the 1996 law would require states without same-sex marriage to adopt it. “In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us,” Justice Scalia wrote in his dissent in the case on the federal law. “The truth is more complicated.”
The case is procedurally tangled. The Obama administration argued that the law is unconstitutional, though it continues to enforce it. House Republicans intervened to defend the law, though it is not clear that they were entitled to represent the interests of the United States. Justice Scalia read from his dissent on the bench, a step justices take in a small share of cases, typically to show that they have especially strong views.
That leaves the possibility that no party before the Supreme Court had standing to challenge the appeals court’s decision. Justice Kennedy, in his opinion, wrote that the law was “unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”
The California case, Hollingsworth v. Perry, No. 12-144, was filed in 2009 by Theodore B. Olson and David Boies, two lawyers who were on opposite sides in the Supreme Court’s decision in Bush v. Gore, which settled the 2000 presidential election. The suit, brought on behalf of two same-sex couples, argued that California voters had violated the federal Constitution the previous year when they overrode a decision of the state’s Supreme Court allowing same-sex marriage. If California becomes the 13th state to legalize same-sex marriage, about 30 percent of Americans will live in jurisdictions where it is legal. Until last year, when four states voted in favor of same-sex marriage at the ballot box, it had failed — or bans on it had succeeded — every time it had appeared on a statewide initiative.
Lower federal courts agreed with Mr. Olson and Mr. Boies, striking down Proposition 8. Opponents of same-sex marriage have said that they remain hopeful that they can mount a political comeback, much as opponents of abortion used Roe v. Wade, the 1973 Supreme Court decision, as a springboard to a more aggressive movement. Brian Brown, the head of the National Organization for Marriage, vowed Wednesday after the rulings to push for a federal constitutional ban on same-sex marriage.
The justices have several options in the California case. They could reverse the appeals court, leaving California’s ban on same-sex marriage in place. They could affirm the appeals court’s ruling on a theory that would allow same-sex marriage only in California. Or they could address the broader question of whether the Constitution requires states to allow such marriages. Gay rights advocates said they would continue pushing to legalize same-sex marriage in new states.
It is also possible that the court will give no answer on the merits, deciding instead that it was powerless to hear the case because no party before it was entitled to appeal from the decisions of the lower courts. (The California officials who lost in the lower courts declined to appeal. Supporters of the ballot initiative did appeal, but it is not clear that they were entitled to step into the government’s shoes to do so.) The case on the federal Defense of Marriage Act of 1996, United States v. Windsor, No. 12-307, considered the part of the law that defines marriage as the union of a man and a woman for purposes of federal benefits. (A different part of the law, allowing states to refuse to recognize same-sex marriages from other states, was not before the court.)
That last option – dismissal on standing grounds, or something similar — would lead to short-term confusion, but many legal experts say they expect it would result in same-sex marriage returning to California in a matter of weeks. The case concerned two New York City women, Edith Windsor and Thea Clara Spyer, who married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor inherited her property. The 1996 law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of about $360,000 that a spouse in an opposite-sex marriage would not have had to pay. Ms. Windsor sued, and last year the United States Court of Appeals for the Second Circuit, in New York, struck down the 1996 law.
Until 2011, the Justice Department defended the law in court, as it typically does all acts of Congress. That year, Attorney General Eric H. Holder Jr. announced that he and President Obama had concluded that the law was unconstitutional and unworthy of defense in court, but that the administration would continue to enforce the law. After the Justice Department stepped aside, House Republicans intervened to defend the law. Although the administration’s position prevailed in the lower courts, the Justice Department filed an appeal to the Supreme Court, saying the final decision should come from the highest court.
The case on Proposition 8, the 2008 California voter initiative that banned same-sex marriage there, was filed in 2009 by Theodore B. Olson and David Boies on behalf a two same-sex couples who sought to marry. The two lawyers argued on opposite sides in Bush v. Gore, the Supreme Court case that settled the 2000 presidential election.
A judge in San Francisco struck down Proposition 8 in a broad ruling whose logic would apply to bans around the nation. California officials did not appeal the ruling.
The United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that proponents of Proposition 8 had standing to appeal the judgment against the state. The court then affirmed the trial judge’s decision but on a narrower ground, saying voters were not entitled to withdraw a constitutional right once it had been established by the State Supreme Court. That reasoning did not directly threaten bans in other states.
In their brief in the Supreme Court, supporters of Proposition 8 said that preserving the traditional definition of marriage would “further society’s vital interests in responsible procreation and child rearing.” Those interests would be undermined, they say, by “officially redefining marriage as a genderless institution.” They urged the Supreme Court to proceed with caution in changing the definition of marriage and to respect societal judgments made through the democratic process.
Supporters of same-sex marriage responded that allowing gay and lesbian couples to wed would not make it any more likely that straight couples would act irresponsibly. They added that courts must protect the fundamental rights of disfavored minorities.
The Obama administration urged the Supreme Court to strike down Proposition 8, focusing on a ground that it said would apply to California and seven other states. It violates the Constitution’s equal protection clause, the administration’s brief said, to confer all the benefits and burdens of marriage on gay and lesbian couples through robust civil union or domestic partnership laws but withhold the label “marriage.”
The Proposition 8 case is Hollingsworth v. Perry, No. 12-144.