On June 26, 2013, our world changed forever. The highest legal authority in the nation declared that anti-gay bigotry is “obnoxious” to the Constitution, and cannot be tolerated. The President of the United States cheered, and declared a “victory for democracy.”
I previously wrote a preview of the two huge gay rights cases being decided by the Supreme Court of the United States (SCOTUS) this summer, United States v. Windsor and Hollingsworth v. Perry.
In Windsor, SCOTUS addressed the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), which provides that the word “marriage,” as used in any federal law or regulation, means only a union of a man and a woman, and prohibits the federal government from conferring on married same-sex couples the nearly 1,200 federal rights and benefits enjoyed by married heterosexual couples. In Perry, SCOTUS addressed Proposition 8, California’s ban on same-sex marriage. I wrote that the decisions in these cases could have a tremendous impact in advancing marriage equality, yet might not necessarily improve our situation here in Florida. That is precisely what happened.
SCOTUS, in a broad and scathing opinion written by Justice Anthony Kennedy (a conservative Catholic appointed by Ronald Reagan), struck down Section 3 of DOMA as a violation of the constitutional guarantee of equal protection under the law. Kennedy’s opinion noted that DOMA reflects an “unusual deviation” from the usual tradition of recognizing and accepting state definitions of marriage, and operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of state-sanctioned marriages. Discriminations of such an “unusual character,” he said, require careful consideration to determine whether they are “obnoxious to the constitutional provision.” The Court’s answer – yes, DOMA is obnoxious.
The Court’s opinion described DOMA as a law “designed to injure” a state-defined class of people, to reflect “disapproval” of that class, to impose “restrictions and disabilities,” “separate status,” and a “stigma,” and to impose inequality. The Court found that DOMA “writes inequality into the entire United States Code.” Kennedy’s opinion raged that DOMA “demean” and “burdens the lives” of same-sex couples, and it “humiliates” and “brings financial harm” to tens of thousands of children now being raised by same-sex couples. The Constitution’s guarantee of equality, he wrote, “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 Court found that Section 3 of DOMA serves “no legitimate purpose” – only to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. 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 federal government will now – for the first time ever – recognize the legality and full equality of same-sex marriages and grant access to the 1,100+ federal rights based on marital status, at least in the 13 states that currently recognize same-sex marriages. It is an open question as to whether these rights will be conferred on same-sex couples who are married but live in states that don’t recognize those marriages.
It will depend on the interpretation of the internal rules and regulations of each of the federal agencies that administer these rights and benefits, and it may require additional litigation to resolve this question. But the good news is that President Obama instructed all federal agencies to revise the applicable regulations, if necessary, to ensure that they are accessible to all same-sex couples regardless of where they live.
The other good news is that the Court’s opinion was written broadly, relying on core concepts of the Constitution, and will be cited repeatedly in courtrooms all throughout the nation to fend off other attempts to legislatively discriminate against our community. The bad news is that the Windsor decision only addressed Section 3 of DOMA. Section 2, which allows states to refuse to recognize same-sex marriages validly entered in other states, is still alive and well in Florida and 36 other states where same-sex marriage is banned. The Windsor decision thus has no immediate impact on gay Floridians’ ability to marry, or have their marriages recognized, in Florida.
The decision in the Perry case also has no immediate impact on Florida. In Perry, SCOTUS rejected the Prop 8 appeal, saying the private party who brought the appeal (after the State of California refused to) had no standing to do so. Therefore, the California District Court decision invalidating Prop 8 stands affirmed. The California District Court issued a very broad ruling finding that Prop 8 was an unconstitutional violation of the federal equal protection clause. SCOTUS, in dismissing the appeal for lack of standing, did not rule on the merits of the constitutional question of whether states can legally ban same-sex marriages.
That fundamental question remains unanswered. The good news is that same-sex couples in California can marry, and the District Court decision will be used as precedent in similar challenges in other states.
We need to keep fighting until all of us can marry in every state, but think of the amazing progress we have made. Two and one-half of our three branches of government support our cause. A solid majority of Americans now support marriage equality. It currently exists in 13 states plus Washington D.C., covering approximately 100 million people, representing nearly one third of the US population. In Justice Kennedy’s words, these individuals – our fellow citizens – will now “live with pride in themselves and their union and in a status of equality with all other married persons.”
June 26, 2013: a very good day indeed.
Mary Meeks is an attorney in Orlando who has practiced law in Central Florida for over 20 years. Her practice includes employment law & commercial litigation.
