The rulings by the U.S. Supreme Court on two same-sex marriage cases are heralded in the press as historic even though Indiana University experts in family law and public opinion also use such phrases as “an expedient way to dodge a decision,” “needlessly fuzzy,” and in baseball lingo, a “walk or a single” compared to a “home run.”
In United States v. Windsor, the court tossed out a key section of the federal Defense of Marriage Act (DOMA).
“This is a momentous step forward for gay and lesbian couples and their families,” said Deborah Widiss, associate professor of law in the IU Maurer School of Law in Bloomington, in today’s news release. “Tens of thousands of same-sex married couples will receive very important new rights under federal law, covering everything from taxes, to time off from work to take care of a spouse, to immigration rights, to military benefits.”
She’s talking about more than 1,000 spousal benefits that previously had been unavailable to same-sex couples and their families. This CNN article discusses some of the substantial financial costs of marriage inequality.
In Hollingsworth v. Perry, the justices let stand a lower-court ruling that overturned Proposition 8, California’s voter initiative outlawing gay marriage. IU Sociologist Brian Powell described the DOMA ruling as historic, saying it would have been unimaginable five to 10 years ago. The Proposition 8 ruling, by contrast, was less expansive.
Before the ruling, approximately one in six Americans lived in a state that legally allowed same-sex marriage or accepted same-sex marriage that was granted in another state. Once same-sex marriage rights are restored in California, this number will increase to about one in three Americans.
“The DOMA decision is a bold decision, while the Prop 8 decision is a timid one,” said Powell, author of “Counted Out: Same-Sex Relations and Americans’ Definitions of Family” (Russell Sage Foundation, 2010), in the news release. “In baseball lingo, it’s akin to DOMA being a home run and Prop 8 being a walk or a single.”
Ryan Scott, associate professor of law in the IU Maurer School of Law in Bloomington, said the Proposition 8 ruling could cause problems down the road.
“In my opinion, this is an unfortunate and poorly reasoned standing decision that invents several new hurdles for appellants seeking review in federal court,” Scott said in the news release. “Based on the novelty of the requirements it imposes, it seems clear that the justices in the majority wanted some excuse — any excuse! — to avoid reaching the merits of the equal protection issue, and they saw this resolution as an expedient way to dodge the decision. … Ballot measures to legalize marijuana, to reform state taxes, to regulate abortion, to expand access to education and health care and to prohibit affirmative action may be struck down by a federal court, and this decision will make appellate review of those judgments, even if incorrect, much more difficult to secure.”
Beth Cate, associate professor in the IU School of Public and Environmental Affairs in Bloomington, says Justice Anthony Kennedy’s DOMA opinion is “needlessly fuzzy” about both what aspects of the Fifth Amendment he is relying on — due process or equal protection — and what standard of review he is using.
Chief Justice John Roberts suggests Kennedy “has boxed himself into accepting state-by-state judgments on whether gay couples may marry. And that seems correct — and not inconsistent with Justice Kennedy’s discussion of ‘people power’ in the Proposition 8 case — even though Kennedy leaves a bit of wiggle room by saying that states are subject to ‘constitutional limitations.’
“Until the Court has another opportunity to address the constitutionality of state same-sex marriage bans,” she says in the news release, “attention will continue to focus on the state-by-state pursuit of marriage equality.”
Jennifer Ann Drobac, professor of law in the IU McKinney School of Law in Indianapolis, says the court’s decision overturns DOMA and paves the way for recognition of validly performed same-sex marriages in all states. From the release:
“Twelve states and the District of Columbia currently issue licenses for same-sex marriages,” she said. “Same-sex couples, their children, and their friends will feel vindicated and elated over the court’s recognition of their rights and lawful family bonds. The majority decision is much broader than some pundits anticipated and will bring joy to many families.”
Widiss added that the ruling will create new challenges for the federal government and courts in determining which marriages “count” for federal purposes. Also, the government will also have to decide whether to treat state-sanctioned civil unions as marriages under federal law.
“If a couple is married in Iowa but moves to a state like Indiana, which does not recognize same-sex marriages, are they still ‘married’ under federal law?” she asked in the news release. “Or will their federal ‘marriage’ dissolve when they cross state lines?”
In this CNN video, the plaintiff in the DOMA case discusses the ruling.