The United States Supreme Court decided on June 26 that married same-sex couples are entitled to federal benefits. At the same time, the court declined to hear a case from California that would ban same-sex marriages in that state.
The court walked a fine line in those two decisions since in neither case did it say whether the U.S. Constitution afforded a right to such unions. That was the right call.
The debate over same-sex marriage is deeply polarizing and the issue is one that deserves a political resolution, rather than one that is decided by judicial fiat.
In the first case, the court struck down the federal Defense of Marriage Act (DOMA). Enacted in 1996, the law was a response to a 1993 Hawaiian court ruling that opened the door to same-sex marriage. To foreclose that possibility, the bill sailed through both houses of Congress with large majorities and was signed into law by then President Bill Clinton.
The bill defined “marriage” for the purpose of federal law as being between a man and a woman. This clarification mattered because thousands of federal laws and regulations use the definition of marriage — for example, to decide whether an individual is defined as a spouse for the purpose of taxation or receiving benefits.
In the years since that law went into effect, 13 states have legalized same-sex marriages, creating a situation in which an individual could be married according to state law but not enjoy that status under federal law.
The case before the Supreme Court concerned a New York woman who had married her lesbian partner in Canada. When the partner died, the plaintiff inherited her property, but because of DOMA, she was not recognized as married and was hit with a large tax bill that a heterosexual surviving spouse would not have had to pay.
In the majority opinion of the 5-4 ruling, Justice Anthony Kennedy focused on the dignity that is denied gay couples when they are given differing treatment under the law.
“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.”
Looking at the legislative history of DOMA, in which the House Judiciary Committee argued that Congress sought to “reflect and honor a collective moral judgment and to express moral disapproval of homosexuality,” Justice Kennedy concluded that DOMA demeaned the “moral and sexual choices” of such couples and humiliated “tens of thousands of children now being raised by same-sex couples.”
That constituted a violation of the Fifth Amendment, which in part says, “No person shall … be deprived of life, liberty or property, without due process of law.”
In a blistering dissent, Justice Antonin Scalia focused on the temerity of the court in overturning legislation that enjoyed overwhelming congressional support. He insisted that the majority opinion endorsed the idea that opponents of same-sex marriage were “enemies of the human race.”
Furthermore, Justice Kennedy “arms well every challenger to a state law restricting marriage to its traditional definition,” wrote Justice Scalia. In other words, Justice Scalia anticipates a renewed judicial challenge to traditional marriage.
In the California case, the justices let stand a lower court decision that had overturned a ballot initiative known as Proposition 8 that banned same-sex marriage.
It was a technical ruling. The state of California had refused to defend Proposition 8 after it was overturned. The court decided that the group that had appealed the ruling did not have “standing” — or a legal interest in the decision — to take the state’s place in court.
To be clear, the court did not declare a constitutional right to same-sex marriage. But it has plainly erected a barrier to acts that would deny the rights of marriage to suchcouples.
Additional legal battles are likely; thorny questions such as how the law will treat same-sex couples that marry in one state and then move to another that does not permit such unions will have to be adjudicated.
But the decision to not take that final step is a wise one. This is a divisive and deeply emotional issue, and one that should be addressed by political leaders, not unelected judges.
Opinion in the U.S. is moving toward greater acceptance of same-sex marriage. A national poll taken the week after the ruling showed that 55 percent of Americans agree that marriages between same-sex couples should be recognized by the law and have the same rights as traditional marriage.
When the question was first asked, just 27 percent supported the idea. Today, just 40 percent oppose it. That figure is likely to shrink more in the future.
The Supreme Court ended its term with other big decisions. One struck down a core provision of the Voters Rights Act (VRA), renewed only a few years earlier, with unanimous support. The provision set down a formula to decide which states and locales with a history of racial discrimination must get federal approval to change voting laws.
Some of the most vociferous opponents of the same-sex marriage decision decried the high court’s refusal to honor the opinion of democratically elected legislators, yet those same critics backed the overturn of the VRA.
Increasingly, judicial philosophy is hard to discern in such decisions. Instead, the court appears to be outcome oriented. That suggests that the justices are subject to the same winds as the politicians they are supposed to check. That is the last thing the U.S. needs at a time of deep political divisions.