By Victor Kessler
The U.S. Supreme Court's decisions on two same-sex marriage cases are rightfully seen by both supporters and opponents as part of a larger debate on the future of same-sex marriage in this country. These cases also reveal a split among the Justices about the federalism implications of the issue and the proper forum for this historic debate.
United States v. Windsor, which struck down the Defense of Marriage Act (DOMA), though nominally decided as an Equal Protection case under the Fifth Amendment, discusses the role of state authority over marriage as a matter “of central relevance” to the ruling. Justice Kennedy’s majority opinion hammers in the traditional deference the federal government has typically shown towards state definitions of marriage. States had always determined who was or could be legally married for the purposes of their own and, with few exceptions until DOMA, federal benefits and programs. DOMA not only redefined marriage for federal purposes, it intruded into an area of traditional state authority and snatched away rights that states had granted to their citizens.
By extending federal benefits to all married couples, Windsor has been hailed as a victory for proponents of same-sex marriage. But in the Court’s reasoning, same-sex marriage is only protected insofar as states choose to support it. If Windsor’s logic prevails, the states, not Congress or the federal courts, will be the primary forum for debate over same-sex marriage in upcoming years.
Hollingsworth v. Perry is more unusual. Chief Justice Roberts, writing for an odd lineup of Justices Scalia, Ginsburg, Breyer, and Kagan, found that the challengers to a federal district court’s decision that invalidated California’s Proposition 8, which banned same-sex marriage, lacked standing to appeal. Normally, a state government will defend its own laws from challenges in the courts. However, state officials declined to defend the ballot initiative outlawing same-sex marriage in the Golden State, so the California Supreme Court unanimously decided that the bill’s citizen sponsors could represent the state’s interest in litigation. The Supreme Court disagreed, holding that the sponsors had no special interest in defending the legislation beyond that of an ordinary citizen, which was insufficient to create a “case” or “controversy” that the high court could hear.
The dissent, written by Justice Kennedy, admonished the majority for ignoring California’s interpretation of its own laws. The point of a ballot initiative system is to allow ordinary citizens to bypass officials with whom they disagree. The California Supreme Court understood that and was not willing to give politicians the backdoor veto of neglecting to defend voter-sponsored initiatives in court. The dissent argued that the state should determine who could or could not represent its interests and that the majority’s ruling undermined a basic principle of state sovereignty in order to avoid a political issue. The dissenting justices would have accepted California’s decision on standing and ruled on the case’s merits. Perry may lead to trouble for ballot-initiative systems in the future, though it will likely be limited to the unusual circumstance where not a single state official is willing to defend a voter-sponsored law.
The cases send mixed messages on federalism. On the one hand, Windsor suggests that the Court will champion state choices with respect to same-sex marriage over federal interference, a line of reasoning that may tip the scales against future judicial efforts to rule on the constitutionality of state decisions, as the Chief Justice points out in his dissent. On the other, Perry lets stand a federal judge’s order declaring a citizen-backed ban on same-sex marriage unconstitutional and contradicts the California Supreme Court’s ruling on state election law. What the two cases have in common is that both push responsibility for ultimately deciding the issue away from the Supreme Court, in Windsor to the states and in Perry back down to the federal trial court. In light of these decisions, only one thing is certain: in the same-sex marriage debate, it will still be up to the states to make the first moves.
For further reading on the same-sex marriage cases and federalism, SCOTUSblog offers an in-depth look.
Victor Kessler is a Legal Intern at the State and Local Legal Center