Wow. No doubt about it. Today was a momentous day.
The Court also held that the proponents of Proposition 8 had no right to appeal the federal district court ruling that the California initiative is unconstitutional, thereby keeping that court’s injunction in place, so that the freedom to marry will soon return to California.
Along with the ACLU and NCLR, and working alongside the City and County of San Francisco, we won the freedom to marry in California in 2008 (before Prop 8 passed) and won a ruling from the California Supreme Court that, notwithstanding Prop 8, same-sex couples who married in California prior to Prop 8’s passage were still legally married.
We won the freedom to marry for same-sex couples in Iowa in 2009. We won cases in New York and Maryland that required those states to honor marriages legally entered in other states before they themselves permitted same-sex couples to marry. We won a district court ruling that federal non-recognition of same-sex couples’ marriages was unconstitutional in our Golinski v. Office of Personnel Management case.
And, with our sister LGBT legal organizations, we supported the legal challenge to Prop 8 by filing friend-of-the-court briefs at every stage of the litigation, as well as in the Windsor v. United States case challenging DOMA.
But the struggle for marriage equality is far from over.
Same-sex couples still cannot marry in 37 states. Lambda Legal currently has a case before the Ninth Circuit challenging Nevada’s refusal to allow same-sex couples to marry that we will be briefing this fall, which could well be the next marriage case to make it to the Supreme Court. We also are pressing forward on our freedom to marry suits in state courts in New Jersey and Illinois.
We will not rest until same-sex couples are treated equally not only by the federal government but in every state and community across the nation.
We also are busy working on many other issues affecting our community: workplace fairness, parent-child relations, the rights of transgender people, the rights of people living with HIV, the rights of LGBT and HIV-positive seniors and young people, health care fairness, the rights of low-income LGBT and HIV-positive people and LGBT racial and ethnic minorities, government misconduct, and fair courts. If anyone says, “the battle is over,” they are suffering from tunnel vision.
Those battles continue. But today there is much to celebrate.
Windsor v. United States
The victory in Windsor v. United States is particularly sweet. Coming 10 years to the day after Lambda Legal’s historic victory in Lawrence v. Texas — which struck down all remaining state laws criminalizing private, non-commercial sexual intimacy among consenting adults — Windsor expressly relies on Lawrence in concluding that DOMA’s refusal to recognize same-sex couples’ marriages demeans those couples “whose moral and sexual choices the Constitution protects.”
The Windsor decision also expressly relies on the earlier victory won by Lambda Legal, the ACLU and a group of Colorado attorneys in Romer v. Evans—which struck down a state constitutional amendment barring the government from protecting lesbians, gay men and bisexuals against discrimination—in concluding that laws like DOMA that impose “discriminations of an unusual character” must be given “careful consideration” by the courts.
Once again, today’s rulings show that victories build upon victories. Today’s rulings also are significant not only for what they decide, but for the additional building blocks they create that will help us in the cases we have yet to win.
The decision in Windsor (written by Justice Anthony Kennedy, who also authored the Lawrence and Romer majority opinions) concludes that principal effect Section 3 of DOMA “is to identify a subset of state-sectioned marriages and make them unequal.”
Indeed, because that portion of DOMA applied so broadly, it “[wrote] inequality into the entire United States Code.” The principal purpose of DOMA as well, the Court’s majority recognizes, was “to impose inequality.”
This “avowed purpose and effect,” it explains, “imposes a disadvantage, a separate status, and so a stigma upon all who entered into [lawful] same-sex marriages.” DOMA “forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations” that marriage provides, and thereby treating those couples’ marriages as “second-class.”
In doing this, DOMA tells same-sex couples “and all the world” that their marriages are unworthy of federal recognition. The Supreme Court further explained this “humiliates tens of thousands of children now being raised by same-sex couples” and “makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”
Although today’s decision only deals with the federal government’s refusal to honor lawfully entered marriages, it will be hard for lower courts to ignore the implications of this recognition in challenges to state laws barring same-sex couples from marrying.
Such states similarly tell same-sex couples “and all the world” that their relationships are unworthy of recognition through marriage. This too humiliates these couples’ children and makes it more difficult for those children “to understand the integrity and closeness of their own family” and how it is similar to the families of their friends.
The burdens DOMA imposes upon same-sex couples, the Windsor decision recognizes, are both “visible and public” and are intensely personal and “demean[ing].” Because DOMA has “no legitimate purpose” that can overcome the disparagement and injury it inflicts, it violates both the “liberty protected by the Fifth Amendment’s Due Process Clause” and the guarantee of equal protection that Fifth Amendment also requires of the federal government.
As a result of today’s decision in Windsor, married same-sex couples who live in states that recognize their marriage should be eligible virtually right away for the same protections, responsibilities, and access to federal programs afforded to all other married couples.
This will have sweeping impacts across federal law with regard to taxes, immigration, social security, Medicaid and Medicare, bankruptcy, employee benefits and protections, veteran’s and military spousal benefits, and much more.
It may take some additional time to change forms, train staff, and otherwise prepare for these changes, but President Obama has already directed the Attorney General to work with the Cabinet to implement the decision “swiftly and smoothly.”
For legally married couples living in states that do not recognize their marriage, there are still many questions about when they will be equally able to share in federal protections, responsibilities, and programs. This is because the federal government typically defers to the states in determining whether a couple’s marriage is valid. There is no one rule across all federal agencies. Some agencies look to the law of the state where a couple married regardless of the law of the state where the couple now lives, while others look to the law of the state where the couple is living now.
We think the federal government can and should take action, where necessary, to ensure that married couples in all states have access to the largest number of federal programs.
The federal government is already looking at how federal agencies can ensure fair and equal treatment of all married couples where possible. However, at this time, there are a number of important federal benefits that depend on whether a couple’s marriage is recognized where they live, so same-sex couples who live in states with bans on marriage by same-sex couples need to proceed with caution before making the decision to marry.
Hollingsworth v. Perry
Next let’s turn to the Supreme Court’s decision in the Hollingsworth v. Perry challenge to Prop 8.
While some people may think that the Court’s decision dodged the issue when it ruled that the proponents of Prop 8 did not have the right to appeal the lower court’s holding declaring Prop 8 unconstitutional, it actually rests on a substantive point that we and our colleagues have been making in marriage cases for years: Those who oppose same-sex couples being able to marry may have strong views on the subject, but they are not actually personally harmed by those couples having the same freedom to wed that they enjoy.
As Chief Justice John Roberts explains, standing (the legal term for the right to bring a case or to appeal) is limited in federal courts to those who have suffered a personal and concrete harm. While they put energy into getting Prop 8 on the ballot, once the measure passed, they are no different than any other Californian, who will in no way be personally harmed if the same-sex couple living down the street can again marry due to the district court’s ruling in the case.
As the Hollingsworth decision explains, the injunction that court issued does not order the Prop 8 proponents “to do or refrain from doing anything.” They therefore have “no ‘direct stake’ in the outcome of their appeal.”
While the Prop 8 Proponents argued that they should be able to step into the shoes of the government defendants who did not appeal, parties are generally only allowed to assert their own legal rights and interests and have suffered some injury themselves.
As we argued in the litigation, it would be troubling for private parties who are not elected by any one, who “answer to no one,” who “decide for themselves, with no review, what arguments to make and how to make them,” and who owe no responsibility to the state to be able to proceed without consideration of the ramifications of their actions on the state’s policies.
As a result of today’s decision that the Proponents of Prop 8 did not have the right to appeal, the Supreme Court did not decide today whether or not the U.S. Constitution requires states that do not currently allow same-sex couples to marry to do so. (They also didn’t decide whether states must recognize marriages same-sex couples have entered in other states.)
Because there was not only no right to appeal to the Supreme Court, but also no right to appeal to the Ninth Circuit, its appellate decision was vacated. Where that leaves things is that the district court’s ruling will again be in effect once the Ninth Circuit lifts the stay it issued on the district court’s injunction.
In the general course, this means that same-sex couples should be able to get married again in California in about a month.
California’s Governor and Attorney General have made clear, in response to the Supreme Court’s decision today, that all county officials in the state must comply with that injunction and allow same-sex couples throughout the state to marry, as soon as the Ninth Circuit acts.
So, while we may not have more June weddings for same-sex California couples this year, they are coming soon!
It’s immensely gratifying to be a lawyer when the legal process works. The joy we at Lambda Legal are feeling today nonetheless is diminished by the harms the Supreme Court recently dealt civil rights protections in overturning a key portion of the Voting Rights Act and in making it more difficult for employees to sue for employment discrimination, harassment and retaliation under Title VII (the federal law barring workplace discrimination based on race, national origin, religion and sex). We join our allies in calling on Congress to correct those rulings.
The victories today are a result of the hard work of many people. The Windsor case could not have proceeded without Edie Windsor standing up for our entire community after the government ignored her marriage to her late wife, and without the excellent, hard work of our colleagues at the ACLU and our friends at the Paul Weiss law firm.
Similarly, the plaintiffs in the Hollingsworth case, their outstanding lawyers at Gibson Dunn & Crutcher and Boies Schiller & Flexner (including particularly Ted Olson and David Boies), and the American Foundation for Equal Rights, which backed the case, are all to be saluted.
Today’s victories also would not have occurred, I firmly believe, but for the courage of all who have come out to their friends, families, neighbors, and co-workers; the time and energy of all (including those who are LGBT and those who are allies) who have organized and protested and knocked on doors so that marriage is now equally available in 13 states and the District of Columbia and public opinion now strongly supports marriage equality, and the support of donors who make the work of all who fight for our community possible.
Thank you all. We all should savor this moment. And then we need to tackle the work that remains.