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Q&A With Brian Pinaire: The Supreme Court's Same-Sex Marriage Rulings

Same-sex marriage supporters across the nation celebrated the Supreme Court rulings on Wednesday.

With a pair of decisions on Wednesday, the U.S. Supreme Court forever changed the way our nation must legally define the idea of ‘marriage.’

Or did it?

While advocates for same-sex marriage equality praised the Court’s decisions in United States v. Windsor and Hollingsworth v. Perry, and while conservatives lamented the rulings that, respectively, struck down the 1996 Defense of Marriage Act and confirmed the rights of California same-sex couples to marry, Lehigh’s Brian Pinaire says it’s important to understand these rulings are a bit more nuanced than mainstream news coverage might suggest.

In an interview just hours after the decisions were released, Pinaire, an associate professor of political science, talked about the importance and relevance of each of these key rulings, Chief Justice John Roberts’ perhaps strategic reasoning in Hollingsworth v. Perry and what comes next in a debate that, to hear Pinaire tell it, will likely continue for years to come.

Let’s start with United States v. Windsor. What is the relevance of this decision?

In a nutshell, that case finds the Defense of Marriage Act to be unconstitutional because it violates the Fifth Amendment rights of same-sex individuals who can’t have their marriages recognized for the purposes of federal law and, more importantly, federal benefits. This, even though they were married legally and even though their marriages were recognized legally in whatever jurisdiction it was where they happened to be wed. In essence, if somebody went to Maryland and got married, when they filed their taxes or their spouse died, certain [marriage] benefits would be withheld from them because federal law since DOMA was passed did not recognize them as legally married, because DOMA very carefully specified the definition of marriage.

Was this the ruling you expected?

I think most close Court observers thought this was going to be the result. You can sometimes get a sense [about what’s going to happen] from the oral arguments, which in this case took place back in March, and from the nature of the questions that are asked. People thought [Associate Justice Anthony] Kennedy was going to turn this case one way or the other and he ended up writing the opinion for the five-member majority. So again, the betting odds were that this was going to be the result.

I don’t want to take anything away from the significance of it, but we still have to see what ultimately comes of this, especially when you think about it vis-a-vis the other one. That’s what was interesting about this all along—that we had these two big cases that dealt with same-sex relationships and also got into very complicated issues of federalism and various provisions of the Constitution. The idea of finding a way to have some consistency across the two cases was really what caught a lot of people’s attention.

Speaking of that other decision, what is the importance of Hollingsworth v. Perry —not only in its own right, but in relation to United States v. Windsor?

Proposition 8 was passed in California by ballot initiative, which is something that is very prevalent in California and other Western states. The actual voters make the law, per se. This was an amendment proposed on the ballot to change the state constitution so it would not allow for same-sex marriage. When it passed, it surprised a lot of people because that’s not a sentiment that you generally associate with California. But it did pass, for a lot of different reasons. It was also, not surprisingly, challenged in the courts. It was later found to be unconstitutional because it violated same-sex parties’ rights, and that’s where the most significant elements of the story come in.

By that point [in the case’s history], the relevant California state officials refused to defend the law in court because they did not support it. It wasn’t something they wanted their names associated with. So the District Court allowed one or several of the parties who had been pushing the proposition—those who had supported it—to intervene and come aboard on the case, because you need two distinct and adversarial parties [in a court case]. Eventually the case made it to the Supreme Court because Hollingsworth was still trying to get the law put back in place.

So the upshot here is that, in a 5-4 ruling with what seems to me to have been strategic reasoning, the Court ruled that Hollingsworth and those on his side neglected to prove they had standing to be involved in the case at all. The idea was that they didn’t demonstrate to the Court that they had been subject to tangible or material harm—that is, they had not been forced to do something or deprived of the ability to do something. When a state passes a law that says, for instance, that redheads can’t walk on the sidewalks, redheads are clearly affected by that and so they can bring a case. These parties, by contrast, were involved in the passing of a law, and that law was eventually stricken, but they weren’t actually affected by that result in any way other than the fact that they had been citizens in support of it, so the Court ruled it should have never gotten to this place.

Were you particularly surprised by any elements of the DOMA ruling?

Not really. I thought when DOMA passed in 1996 that it was unconstitutional. The federal government has clearly defined and enumerated powers, and Article I says precisely what Congress may do. Nowhere in Article I does it say or even hint that the federal government has a role in contemplating the definition of marriage. Marriage as long as there has been an America has been a state issue. Now, some people don’t like that because you’re going to have some states that don’t recognize same-sex marriage and some that do. But the point is it’s basically a principle of federalism that marriage be handled this way. DOMA overstepped that tradition and imposed a federal presence in a debate where it didn’t belong. It shouldn’t have been passed, but it was passed in 1996 for the simple reason that it was politically advantageous to be on that side of the debate at the time. So I’m glad it’s gone. I wish we didn’t have it in the first place.

How about the Prop 8 ruling?

I saw this ruling as a classic bit of maneuvering by Roberts to tread very carefully and not have his namesake—the Roberts Court—be associated with any kind of ruling that was going to have a broad, sweeping effect on this issue. A year ago we were talking about how he was the fifth vote in the Obamacare ruling, and that decision was in the same vein. He didn’t want to do something like strike that law down—if he had, it would have been negatively associated with him. He departed from his ideologues there, and there’s some of that in this ruling, too. He writes the five-member majority decision here, stating that there’s no standing, and some will interpret that as a dodge. Which in some ways it is, but in some sense it’s also quite pragmatic. All it really means is that if you’re a same-sex couple in California, you can get married, which is in essence what the District Court said when it threw out the law. But it does leave open some pretty big questions for what it this means for other states. … We don’t have a lot of clarity here.

So what happens next?

Well, that’s a good question. The drama around this is like something out of “The West Wing”—people just waiting with bated breath, standing outside the great marble temple for the judges to tell us what the answer is. It gets kind of silly. That’s not to say these weren’t important cases, because they were important, but it’s not the kind of thing that leaves you in awe. It’s not Roe v. Wade or something like that, where in one fell swoop state laws around the country were thrown out and where broad and highly contested assertions of constitutional meaning became the law of the land. For those who are not in same-sex relationships or seeking this sort of recognition in their own states, these rulings may not mean much. People will be elated or troubled by various notions, perhaps, but compared to what could have been decided, these rulings are pretty limited. For those who have been deprived—Edith Windsor and others—they will be reimbursed. That will happen. But in terms of what’s going to go on in the 50 states regarding that issue, I don’t really know. In a sense, it just keeps the debate going. It keeps the ball rolling and the top spinning. It answers some questions, and poses plenty more.

Story by Tim Hyland

Posted on Thursday, June 27, 2013

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