Gay Marriage Decision Confers “Equal Citizenship,” BU Scholar Says
LAW’s Linda McClain applauds landmark ruling
Married gay couples in states allowing same-sex marriage will be entitled to all federal marital benefits, such as Social Security, following yesterday’s US Supreme Court decision striking down the federal gay marriage ban, says School of Law Professor Linda McClain.
The decision “is a significant step in solidifying the equal citizenship of gay men and lesbians,” says McClain, who specializes in family law and the nexus of gender and law. Her recent book, Ordered Liberty (Harvard University Press, 2013), discusses gay marriage.
The court also put off a decision on Proposition 8, California’s voter-passed ban on gay marriage. But activists hailed both rulings as a pivotal step forward for gay rights.
In the first case, Edith Windsor, a New York lesbian widow, challenged the 1996 federal Defense of Marriage Act (DOMA), which denied her designation as a surviving spouse and saddled her with $360,000 in taxes when she inherited her deceased spouse’s property. A heterosexual survivor would not have faced the tax bill.
The second case featured two California gay couples who challenged Prop 8. The court sent that case back to a lower court, ruling that the law’s supporters didn’t have standing to bring the case to the high court. “This certainly opens the door to same-sex couples being able to marry in California,” says McClain, “but the exact details about how this will work are not entirely clear.”
The decisions, although split, reflected a trend toward broader support for same-sex marriage. A dozen states and the District of Columbia currently permit gay marriage; three of those states enacted their laws since the high court heard its cases in March. Polls show a majority of Americans support homosexuals’ right to marry.
McClain parsed the decisions for BU Today.
BU Today: Do you agree with the court’s decisions?
McClain: On DOMA, this is an inspiring opinion. Justice Anthony Kennedy, who wrote the majority opinion, shows his characteristic concern for dignity and status with respect to gay men and lesbians. The word “dignity” appears repeatedly in his opinion. Marriage, he noted, bestows “status and dignity.” By contrast, he wrote that Section 3 of DOMA “writes inequality into the entire United States Code.”
Kennedy avoided deciding this case purely on a states’ rights or federalism rationale. Instead, he focused on what New York was attempting to do when it changed its marriage laws to allow same-sex couples to marry, and when it recognized Edith Windsor’s out-of-state marriage and how DOMA undermined that. State law, in other words, confers dignity and respect; federal law injures and denies respect.
Kennedy stresses that part of the dignity of marriage is that it entails rights and responsibilities; DOMA deprives same-sex couples of these rights and responsibilities. Kennedy stresses that it is unconstitutional for DOMA to create two different tiers of married couples, for purposes of federal law, when all those couples are lawfully married under state law.
With the Prop 8 case, the court did what people expected it to do—avoid ruling on the merits. The particularly interesting thing to me is the ideological mix of justices in the majority and the dissent. While the majority and dissent in Windsor were what one would expect, with Kennedy the decisive fifth vote striking down DOMA, the alliances in the other case were surprising, with some liberals and moderates joining Chief Justice Roberts saying the Prop 8 proponents, as private parties, lacked standing, and a mix of conservatives and Justice Sotomayor joining Justice Kennedy in dissent.
Certainly, Prop 8’s opponents did not get the big victory they sought—which would have been an affirmance of the Ninth Circuit Court opinion overturning Prop 8. But they also did not get a ruling that the Constitution did not include such a right or a ruling affirming Prop 8. So I think people will spin this different ways.
Do you expect more states to legalize same-sex marriage in light of the court’s overturning DOMA?
I believe that Justice Kennedy’s opinion may inspire some state legislators to enact marriage equality laws, but overruling DOMA will not have any immediate practical impact in states that do not allow same-sex couples to marry.
What impact are the court’s decisions likely to have on Congress and the president?
Congress is not likely to re-enact DOMA given that the court has struck down Section 3. The president, however, is most likely going to direct the various departments and agencies of the federal government to stop enforcing DOMA and to recognize marriages valid under state law as valid under federal law. President Obama previously said his administration would continue to enforce DOMA until it got a definitive judicial resolution. Now he has it.
What will be the practical effects of the court’s decisions?
Couples lawfully wedded under state law will be treated as married for purposes of those numerous federal laws that refer to marriage, e.g., tax laws, veterans benefits, health care, Social Security, and the like.
In California, Governor Jerry Brown, after getting legal advice, has now ordered all county clerks to issue marriage licenses to same-sex couples once the Ninth Circuit Court lifts the stay it placed on its ruling overturning Prop 8 pending the Supreme Court’s decision.
The decisions won’t affect religious denominations that refuse to perform same-sex marriages, correct?
Neither ruling will affect the religious liberty of religious denominations. They remain free to define marriage, as a matter of religious law, as their religion prescribes. No religious official has to perform a marriage that offends his or her religious beliefs. These decisions relate to marriage as a civil institution, licensed by the state.10 Comments