DOMA Nearly Down the Drain and Prop 8 Punted — But What Does That Really Mean?

| June 27, 2013

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The last couple of weeks must have wreaked havoc on the sanity on your average African-American lesbian applying for college and registering to vote.

Every couple of days the Supreme Court announced a decision on some long-awaited, high profile case with direct impact on her life.  First, the conservative justices took a bite out of Affirmative Action and made it harder (but not impossible) for universities to try and ensure racial diversity among their student populations. A couple of days later they landed a right hook directly in the solar plexus of the Voting Rights Act of 1965. Just when she starts to really get depressed, they announce two blockbuster decisions in favor of Marriage Equality and gay rights.

Should she despair or should she celebrate?  The answer is yes.

But I want to focus on the good news and talk about the yesterday’s Marriage Equality decisions.  I’ll put off the esoteric, “inside the Beltway” legal analysis for another day, though. Right now, while the effects of the decisions are still rippling, let’s dive in and discuss what we do know, understand what the decisions do and don’t mean, and try to put yesterday’s events in practical perspective.

First, let’s be clear about the basics: two separate cases were decided at the same time because they deal with similar subject matter.  But they were legally unrelated and should be understood separately.

The Prop 8 Case
In 2000, the citizens of California passed Proposition 22, which added a new law to the state’s Family Code that limited marriage to opposite-sex couples. Eight years later, on May 15, 2008, the California Supreme Court declared the new law unconstitutional under the California State Constitution. California same-sex couples immediately started getting married.


Undeterred, anti-gay forces regrouped and sprang into action; if the state Constitution didn’t allow prohibition of same-sex marriage, they’d simply change the Constitution. Proposition 8 was the result, and on November 5, 2008 – the same day Barack Obama was elected president – the citizens of California passed Prop 8 and added the words “only marriage between a man and a woman is valid or recognized in California” to the state constitution. California same-sex marriages immediately stopped.

Checkmate. Or so they thought.

Not to be outdone, Marriage Equality forces filed suit in the U.S. District Court alleging the U.S. Constitution disallowed (and thus trumped) Prop 8’s amendment to the California Constitution. The lawsuit was filed and championed by an unexpected, all-star legal team: liberal icon David Boies and conservative icon Ted Olson, the very lawyers who squared off against one another before the Supreme Court in Bush v Gore, the infamous case that resulted in George W. Bush being sworn in as the forty-third President of the United States.

After a high profile trial, Judge Vaughn Walker agreed with Boies and Olson and overturned Prop 8, issuing a sweeping decision declaring that Prop 8 violated the Due Process and Equal Protection clauses of the US Constitution and was based solely on antigay hostility. Along with his decision, Judge Walker issued a “stay,” meaning his ruling wouldn’t take effect (and California same-sex couples wouldn’t start marrying again) while the decision was under appeal.

But the trouble was; who would appeal it? Certainly not the Marriage Equality forces who had just won. The State of California had lost, but it made no secret of the fact it wanted to lose and would not file an appeal. So the anti-gay Prop 8 supporters stepped into the void and asked the Ninth Circuit Court of Appeals to permit them to appeal the decision on behalf of the State of California. The Court of Appeals allowed their request, heard the appeal, and agreed with the lower court’s decision overturning Prop 8 – albeit on narrower grounds. The Court of Appeals, knowing where the case was headed, kept the stay in place until the U.S. Supreme Court had an opportunity to consider the matter, which it did on March 26, 2013.

Yesterday’s Prop 8 ruling was received with much fanfare. But what did the Supreme Court actually decide? When it comes to same-sex marriage itself, the justices decided absolutely nothing; they didn’t so much as mention whether the US Constitution does or does not permit states to prohibit same-sex marriage. All they said was this: only the State of California had the right to appeal Judge Walker’s decision and, since the Prop 8 supporters were not parties to the original lawsuit, they should never have been permitted to file the appeal in the first place. The court treated the matter like a hot potato, tossed the case back where it came from, and pretended they’d never seen or heard anything about the substance of the matter at hand. Interestingly, in so doing, they also invalidated the Court of Appeals’ ruling affirming Judge Walker’s original decision, since the appellate court should not have permitted the Prop 8 supporters to file earlier appeal, either. 

In effect, the Supreme Court justices climbed into a DeLorean, accelerated to 88 mph, transported California back to August 4, 2010 (the date Judge Walker first overturned Prop 8 at the trial court level), and called it a day. Now that the appellate process has run its course, the stay is lifted, Judge Walker’s original decision takes effect, and Prop 8 no longer exists in California. Same-sex couples in that state will be free to marry in the very near future.

That’s it. In the end it’s all about California and has no effect on any other state.

Or does it? California represents about 11 percent of the population of the country and is arguably the most influential state in the nation. It is now the thirteenth, and largest, state to permit marriage equality. The sheer number of same-sex weddings that are about to take place in the Golden State is destined to accelerate the country’s inexorable march toward Marriage Equality. Moreover, since the Court of Appeals’ narrower ruling was erased, Judge Walker’s sweeping ruling is now the only official decision in the matter and his findings are now available to support other lawsuits in other jurisdictions. Even though Marriage Equality didn’t reach the finish line as many had hoped, it most definitely took another step forward.

A big step forward. As California goes, so goes the nation.

The DOMA Case
Though it had certainly been discussed, same-sex marriage did not yet exist in the U.S. when the Defense of Marriage Act (DOMA) was enacted in 1996. Therefore, DOMA was little more than a knee-jerk “preaction” to the very idea that same-sex marriage might possibly take effect in some unknown state at some undetermined point in the future. It was emotionally-based, patently bigoted, and unconstitutional to anyone who stepped back and actually thought about what would happen if a state actually permitted same-sex marriage:

  • Legally married same-sex couples would be denied the right to file taxes jointly
  • Sponsor a spouse for a green card
  • Receive Social Security survivor benefits, and enjoy over 1,000 other federal marriage benefits solely because they’re gay.

One doesn’t have to be a lawyer to easily understand the inequality and unfairness in that situation.

DOMA itself is actually quite short and simple. It has three sections: Section 1 gives the law its Orwellian name; Section 2 says no state is required to recognize same-sex marriages entered into in other states; and Section 3 says the U.S. government only recognizes opposite-sex marriages for purposes of federal laws. That’s it.

Oh, how much confusion, unfairness, and agitation have those few words caused?

It’s important to remember that no one gets federally married; marriage is generally a matter of state law. We can all recite the magic words “by the power vested in me by the state of _______, I now pronounce you man and wife.” A couple gets married pursuant to the laws of the state where the ceremony takes place and – PRESTO – forty-nine other states and the federal government automatically and immediately recognize that couple’s marriage. DOMA interrupted that long-standing, smoothly functioning, constitutionally required process of automatic and immediate recognition. In so doing, it created confusion, unfairness, and uncertainty.

Nature abhors a vacuum. The U.S. Constitution guarantees equal protection of the law. Something had to give.

And yesterday, it gave. The Supreme Court’s ruling started the dismantling of DOMA’s artificial, unfair, and unsustainable influence, but it didn’t complete the process. Yes, the internet is full of proclamations that DOMA IS DEAD!, but that’s not entirely true. DOMA is slipping down the drain, but it’s not gone entirely. What is gone is DOMA’s Section 3 – the part that required the federal government to pretend legally married same-sex couples aren’t married. Sections 1 and 2 are alive … and kicking gays and lesbians and their children right in the gut.

The death of DOMA’s Section 3 has no direct effect on the progress of same-sex marriage; its demise won’t result in Marriage Equality across the land. A married same-sex couple in Boston that moves to Atlanta will still not be married in the eyes of Georgia. Same-sex couples in Chicago still can’t get married without going to another state, and as soon as they get back from their honeymoon they’ll still be unmarried in Illinois.

Nevertheless, federal recognition of same-sex marriages is huge. Most of the rights and benefits we all associate with marriage come from the federal government. Until yesterday, married same-sex couples were denied those rights; as Justice Ginsburg aptly put it – they were forced to settle for “skim milk marriage.” Now, for the first time, the U.S. government will treat all married couples the same. Married same-sex couples will finally enjoy the full complement of 1,138 federal rights and benefits that come into effect at that moment when the federal government instantly and automatically considers a couple to be married because they were married under the laws of a particular state. Millions of lives will be improved. Millions of minds will likely be changed as well.

It will take a little time to sort everything out, of course. The various agencies of the U.S. government will have to examine myriad laws and regulations and see what’s what. Right now, though, it’s clear that married same-sex couples living in states that permit same-sex marriage will very quickly – if not immediately – enjoy the benefits of federal recognition of their marriage. Military spouses will gain base privileges. A widow will not pay inheritance taxes when her wife dies. A husband can sponsor his foreign-born husband for citizenship. The list goes on and on.

A nagging question remains, though. What about same-sex couples living in a non-Marriage Equality state who travel to another state to get married? What about legally married same-sex couples who move from a Marriage Equality state to a non-Marriage Equality state? In many instances, that won’t matter; the federal government will consider them married even if their own state does not. It’s too soon to know if some peculiar federal right or benefit is tied to the state a couple lives, rather than the state where they got married. It’s possible. Only time will tell. But those situations shouldn’t be the norm, and they’re unlikely to last for long. Marriage Equality is coming; state by state, year after year, it’s coming. Yesterday’s decisions gave marriage rights to same-sex couples in the largest state in the country, gave federal recognition to married same-sex couples across the land, and energized the movement that’s working to bring Marriage Equality to same-sex couples in the 37 states that presently deny it.

When it comes to Marriage Equality, the ship has sailed. The train has left the station. We’re past The Tipping Point. You pick the metaphor. But make no mistake: it is coming.

And it’s going to be fun to watch. Well … it’ll be fun for Marriage Equality supporters to watch. State legislatures are going to enact Marriage Equality laws on a regular basis. Citizens will increasingly vote to overturn amendments to their state constitutions that were cynically placed on ballots in the ‘90s.

We all know, however, that certain states (I’m looking at you, South Carolina) will never get there on their own. Those states will need to be dragged, kicking and screaming, toward equality and fairness as they always have and always will. So watch for new lawsuits to be filed attacking the indefensible DOMA Section 2. Watch for other lawsuits to challenge the antigay laws and constitutional amendments in the non-Marriage Equality states. These new cases are about to start making their way to the Supreme Court. Sooner or later (and by that I mean sooner) the Supreme Court will have a case that can’t be volleyed back on procedural grounds, and the justices will be forced to eliminate the glaring, un-American, discriminatory, unsustainable situation that exists in this country.

When that happens we’ll rush out into the streets again, flinging confetti, waving flags, shedding tears, and celebrating all over again. I’ll write another article explaining what the hell just happened. But that time the songs will be sung, the tears will be shed, the flags will be waved, and the articles will be written not because we took another step forward, but because we’ve reached the finish line.

And a certain black gay woman may just be getting her new diploma framed, registering to run for public office, and planning her wedding day to that amazing woman she met at orientation in her freshman year.

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About the Author ()

Jeff Stine is a business lawyer trying to earn a living providing humorless-yet-caring transactional advice to companies of all sizes. He devotes lots and lots of free time to reading about world events, having semi-deep thoughts, and studying pop-culture so he can appear interesting to his friends. He lives in Atlanta, GA and, a few weeks a year, in Hoboken, NJ.

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