A mixed blessing for marriage

by Michael Tamayo

Social media is understandably abuzz with the Supreme Court’s Wednesday decisions on same-sex marriage. Proponents of same-sex marriage are probably ecstatic. President Obama has released a statement claiming that the decisions have righted a wrong and that the country is better for it. CNN reports that the decisions are being hailed as an historic victory, which indeed they are to some degree. But it’s important not to be carried away with the implications of the high court’s decisions. The Supreme Court hasn’t offered cut-and-dried, broad rulings regarding the issue of same-sex marriage. The decisions are probably closer to a double than a home run, and their scope is more limited than it seems at first glance.

First, the California Proposition 8 case (Hollingsworth v. Perry). The first thing to notice about this case is that the traditional liberal and conservative blocs of the Supreme Court did not stick to form here. Chief Justice Roberts wrote the majority opinion and was joined by Justices Breyer, Ginsburg, Kagan, and Scalia. Justice Kennedy filed a dissenting opinion and was joined by Justices Alito, Thomas, and Sotomayor. Together, this makes for a 5-4 decision with a bizarre voting composition.

The majority opinion didn’t even offer a ruling in a technical sense but rather declined to rule at all. Because the state of California refused to send a public lawyer to defend Prop 8 in court, the private group behind the proposition sent a private lawyer to do so. The Supreme Court essentially argued that the case shouldn’t have been heard in the first place because private lawyers do not represent the voice of the state government—only public lawyers can do so.

“We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to,” Chief Justice Roberts writes in his opinion. “We decline to do so for the first time here.” That being established, the Supreme Court then handed the case back down to the Ninth Circuit with orders to dismiss the appeal. Without the support of the appellate courts, the district court’s original opinion will hold, which argues that California has no rational basis to deny marriage licenses to same-sex couples.

Hollingsworth v. Perry is a narrow decision that affects the legality of same-sex marriage in California only. The Supreme Court did not decide on the constitutionality of voter-approved same-sex marriage bans in general. The Supreme Court did not decide on whether or not such bans violated the Fourteenth Amendment. All the Supreme Court did was dismiss the case. For proponents of same-sex marriage, this is victory by technicality.

Then there’s the Defense of Marriage Act case (United States v. Windsor). The voting composition of this case is much more straightforward. Justice Kennedy wrote the majority opinion and was joined by Justices Breyer, Ginsburg, Kagan, and Sotomayor. There were several dissenting opinions filed, shared by Chief Justice Roberts and Justices Alito, Scalia, and Thomas.

The majority opinion in this case ruled Section 3 of DOMA unconstitutional. Section 3 is the provision of DOMA that defines marriage on a federal level as a legal union between a man and a woman as husband and wife. Justice Kennedy argues in his opinion that Section 3 of DOMA is “a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.” This means the federal definition of marriage has been tossed out, paving the way for married same-sex couples to receive over 1,000 federal rights, benefits, and privileges. It is for this that news outlets have been hammering away at the supposed demise of DOMA. The Los Angeles Times ran a headline declaring that the “Supreme Court finds DOMA unconstitutional.” Plenty of news sources have been running similar headlines, which is troubling because it’s only half true. Fox News is probably one of the few sources that ran an accurate headline: “Supreme Court strikes down DOMA provision denying benefits to gay couples.”

The problem here is that the rest of DOMA remains the law of the land. Specifically, the Supreme Court didn’t touch Section 2 of DOMA, which provides that states don’t have to recognize same-sex marriages from other states. A same-sex couple that is recognized as married in Massachusetts, for example, doesn’t have been to recognized as being married by the state of Florida. Justice Kennedy’s majority opinion explicitly declined to discuss this provision: “Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States … Section 3 is at issue here.”

Section 2 may get another Supreme Court case in the future challenging its constitutionality, but for now it still remains in effect. Striking down Section 3 didn’t declare DOMA as a whole unconstitutional; it simply opened up avenues for same-sex couples in those states that already recognize their relationships as marriages.

Make no mistake: the Supreme Court has handed proponents of same-sex marriage a victory. This is irrefutable. But the reach of these decisions must be put into perspective. These cases are 5-4 decisions with limited scope, and they don’t knock the issue out of the ballpark. Yes, they are landmark decisions in the field of LGBT rights, but they aren’t Brown v. Board of Education.

They aren’t unanimous decisions, and they haven’t decided these issues in broad strokes. The point here is that it is easy to get carried away with today’s news headlines, and it is easy to find misleading information on social networking websites and even on news websites regarding the status of same-sex marriage in the United States.

Be wary of anyone who attempts to generalize the implications of these cases any more than the majority opinions actually carry them. Prop 8 was decided on technicality without examining actual constitutional issues at stake. And only part of DOMA was declared unconstitutional while still leaving enough room for states to refuse to recognize same-sex marriages from other states as they wish. Don’t believe for one second that these decisions are any broader than that.


photo of United States Supreme Court building in Washington, D.C. by Mark Fischer: http://bit.ly/129k2GI