The Supreme Court is scheduled to hear oral argument later this month in two cases concerning whether same-sex couples may marry. One case, U.S. vs. Windsor, concerns the Defense of Marriage Act, or DOMA which defines marriage as between one man and one woman for purposes of federal law. The other, Hollingsworth vs. Perry, concerns California’s Proposition 8, approved by voters in 2008 to amend California’s constitution to prohibit same-sex marriage. Lehigh finance and law professors George Nation and Matt Melone explain the legal issues involved in these controversial cases.
U.S. vs. Windsor
This case concerns whether the federal government has the authority to define marriage. In this case, a gay female couple, legally married under New York state law, crafted an estate plan that left the assets of each to the surviving spouse. (Under federal tax law, property passing to a surviving spouse is not subject to federal estate tax.) However, the I.R.S. asserted that, despite the fact that the couple was married according to state law, DOMA precluded that status for estate tax purposes. As a result, property that passed from the decedent to her surviving spouse was subject to estate tax, in the amount of approximately $363,000.
The Defense of Marriage Act
DOMA, enacted in 1996 by then-President Bill Clinton, has a very broad impact. A great number of federal benefits depend upon a person’s status as “spouse,” including favorable tax and employee benefit provisions. For example, many employers provide medical benefits to homosexual spouses—but not tax-free as they are for heterosexual spouses. Moreover, various required legal protections provided to spouses of employees covered by retirement plans are not available to same-sex spouses. In addition to the perceived unfairness of this treatment, employers are forced to incur substantial administrative burdens in dealing with DOMA’s disparate treatment of same-sex and heterosexual spouses. Ultimately, the broad reach of DOMA has led a broad coalition of corporations and business leaders to urge the Court to strike down DOMA.
Before DOMA, marriage was traditionally regulated by the states. Article 1, Section 6 of the U.S. Constitution does not give Congress the authority to regulate or to define marriage. Before DOMA, whether a person was married for purposes of federal law was determined by state law. Windsor illustrates the discriminatory effect the Act can have.
Most experts expect the Court to find that DOMA is unconstitutional and in fact the Obama administration has urged this result. Historically, unlike race, religion, and national origin, sexual orientation has not been considered a “suspect class” and, therefore, has not been afforded heightened discrimination protection. However, the Second Circuit struck down DOMA and required that laws that discriminate on the basis of sexual orientation pass muster under so-called intermediate or heightened scrutiny.
Hollingsworth vs. Perry
The Windsor case has broad importance given the number of federal provisions that depend on marital status. However, the Court’s resolution of this case does not in any way require it to go any further than simply deciding whether the federal government can pick and choose which state law marriages to recognize. Whether a state must allow same-sex marriage is not a question before the Court in Windsor.
But, the Hollingsworth case may cause the Court to answer that question and is thus much more interesting, potentially joining the pantheon of legendary decisions such as Brown v. The Board of Education and Roe v. Wade. This case could be used by the court to find that same-sex couples have a constitutional right to marry, or that marriage itself is a fundamental right. On the other hand, the Court’s holding in this case could be much narrower and apply only to California, or the Court may uphold California’s prohibition.
The Hollingsworth case began when the Supreme Court of California found a state prohibition on same-sex marriage unconstitutional. Shortly after that decision, those wishing to prohibit same-sex marriage began the process of qualifying Proposition 8 for inclusion on the ballot in 2008. In the meantime, thousands of same-sex couples were married in California based upon the California Supreme court decision. After Prop 8 was approved by voters, a legal challenge to it was taken to the California Supreme Court. The court upheld Prop 8 noting that, under California law, same-sex couples are permitted to enter into a domestic partnership that provides all of the rights of marriage except the right to use the designation of marriage. Advocates of same-sex marriage then challenged Prop 8 in federal court. Both the Federal District Court and the Ninth Circuit Court of Appeals found that Prop 8 was unconstitutional under the U. S. Constitution, citing both the Equal Protection Clause and the Due Process Clause of the 14th Amendment.
The Rational Basis Test
The U. S. Supreme Court has a number of options to resolve this case. First, it is possible, but not expected, that the Court will uphold the California Supreme Court's ruling and find that Prop 8 is constitutional. That is, that the U.S. Constitution simply does not prohibit states from restricting marriage to opposite-sex couples. The Court could reach this conclusion by applying a rational basis test. Under the rational basis test, proponents of Prop 8 would need to show that the law is a rational means of achieving a legitimate government goal. Proponents of Prop 8 note the biological fact that only opposite-sex couples may produce children. They argue that this difference along with the states interest in responsible procreation and child rearing allows separate treatment under the Equal Protection Clause.
Meanwhile, opponents of Prop 8 have noted that California is willing to allow same-sex marriage in all but name, including allowing same-sex couple parenting. Opponents argue that this indicates the true purpose of Prop 8 is to discriminate against gays and lesbians, not to further any state interest. It seems very unlikely that the court will uphold Prop 8.
If the Court does invalidate it, exactly how it does so will be very important. The Court has four (at least) options. First, it could render a holding that applies only to California. For example, because California had recognized same-sex marriage for a time and then revoked that recognition (as opposed to never having recognized the right in the first place), the Court could find that revoking an existing right on the basis of sexual orientation violates the Equal Protection Clause. This holding, which essentially follows the decision of the Ninth Circuit would apply only to California, and questions regarding a constitutional right to same-sex marriage would have to wait for another day.
The second option would be to base the ruling on the fact that California, like several other states, offers to same-sex partners a marital status in all but name. The relevance of this fact depends on how important it is to be able to use the designation “married”. The Supreme Court of California thought it not very important and upheld Prop 8. If the court decides as the Obama administration has argued the designation is important then under this analysis Prop 8 would likely fail. No government interest is promoted by denying same-sex couples only the designation of marriage. The Court could reach this decision by applying either the rational basis test or heightened scrutiny. Applying heightened scrutiny would have a broader impact legislatively.
Under heightened scrutiny, the government must show an important interest that is actually furthered by the legislation. Under this test, California would have to show that it had an important government interest in prohibiting same-sex couples from being considered married and that the prohibition actually achieved this interest. Since Prop 8 neither promotes opposite-sex parenting nor prevents same-sex parenting, California's alleged interest in responsible procreation and child rearing would likely fail this test.
Technically a ruling like this would apply only to California, but it would certainly set the stage for recognition of same-sex marriage in other states that currently have domestic partnerships equal to marriage in all but name. These states include Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island.
The third possibility is that the Court holds that the Equal Protection Clause of the 14th Amendment prevents states from denying same-sex couples the right to marry. This would be a broad ruling and would apply to all 50 states (though 9 already allow same-sex marriage). But, it would also be very important whether this holding was based on the rational basis test or the heightened scrutiny test. If the Court applied a rational basis test then it would not be clear whether states could prohibit rights other than marriage on the basis of sexual orientation. If the Court applied a heightened scrutiny test, as it does in gender classifications, then the holding would be broader and could be cited for the proposition that legislative classifications based on sexual orientation will always be subject to heighten scrutiny.
Finally it is possible, though not likely, that the Court could use this case to find a fundamental right to marriage under a substantive due process analysis. Such a holding would also apply to all 50 states and would result in strict scrutiny being applied to legislation seeking to prohibit same-sex marriage. Under strict scrutiny any legislation must be narrowly tailored to further a compelling government interest. However, this holding would not address the broader question of discrimination on the basis of sexual orientation. Also, the effect of recognizing a fundamental right to marry would not be limited to the context of same-sex marriage. The exact scope of a fundamental right to marry is very hard to predict.