Wednesday, June 26, 2013

Supreme Court Case Bolsters Gay Marriage

This is a landmark decision.  Just came across the Wall Street Journal.

Supreme Court Rulings Boost Gay Marriage

DOMA Violates 'Equal Protection Principles'; Justices Avoid Ruling on California's Proposition 8

By Jess Bravin

WASHINGTON—The Supreme Court dramatically advanced
the struggle for gay rights Wednesday, ending the federal government's discrimination against same-sex spouses and authorizing the resumption of gay marriages in the nation's most populous state.  In a pair of 5-4 decisions announced on the final day of the court's annual term, the justices struck down the 1996 Defense of Marriage Act, which had denied federal benefits to gay couples married under state law, and let stand a district-court ruling that Proposition 8, a 2008 voter initiative that ended same-sex marriages in California, is unconstitutional. 

In striking down the Defense of Marriage Act, Justice Anthony Kennedy said Congress had no business undermining a state's decision to extend "the recognition, dignity, and protection" of the marriage contract to same-sex couples.  By excluding such couples from the rights and responsibilities of marriage afforded by more than 1,000 provisions of federal law, "DOMA writes inequality into the entire United States Code," Justice Kennedy wrote.  That violates the right to liberty protected by the Fifth Amendment, Justice Kennedy wrote, joined by liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Four conservatives filed three separate dissents. Justice Antonin Scalia read his from the bench. He and others contended that the court had no jurisdiction to hear the case at all, because the Obama administration already had concluded the 1996 law was unconstitutional and thus there was no dispute for the court to resolve.

As for the merits of the law, Justice Scalia said it should stand. "Favoring man-woman marriage no more 'demeans' and 'humiliates' other sexual relationships than favoring our Constitution demeans and humiliates the governmental systems of other countries," he said.  In Los Angeles, California Attorney General Kamala Harris said the ruling on Proposition 8 means that "every county in the state of California must now recognize the right of same-sex couples to legally marry." She said marriages will resume in the state as soon as a federal appeals court lifts a stay on an earlier district-court ruling requiring the state to permit gay marriage.  Following standard procedure, the Ninth U.S. Circuit Court of Appeals said it would wait at least 25 days to put the district court ruling into effect.

President Barack Obama applauded the outcome. "The laws of our land are catching up to the fundamental truth that millions of Americans hold in our hearts: When all Americans are treated as equal, no matter who they are or whom they love, we are all more free," he said in a statement. He directed cabinet secretaries to implement the ruling "swiftly and smoothly."  The ruling means that same-sex couples lawfully married in their state can receive the same federal benefits as heterosexual couples, such as possible tax advantages by filing jointly, benefits for veterans' spouses and inheritance-tax exemptions.

When the Justice Department declined to defend the marriage law, the Republican-controlled House of Representatives hired its own attorney to do so. House Speaker John Boehner (R., Ohio), who championed that effort, said he was "obviously disappointed."  "A robust national debate over marriage will continue in the public square, and it is my hope that states will define marriage as the union between one man and one woman," Mr. Boehner added.  Front-line opponents of gay marriage were bereft.  "There's a stench coming from these cases that has now stained the Supreme Court," said Brian Brown, president of the National Organization for Marriage. "It's imperative that Congress continue to protect the right of states to not recognize faux marriages in their state."

The ruling left intact a separate Defense of Marriage Act provision stating that states need not recognize same-sex marriages performed by other states.  While the DOMA opinions prompted passion from the court's majority and dissenters alike, the Proposition 8 ruling was as dry as a law school text.  Here the ideological lines scrambled over the question of the court's jurisdiction to hear the case. Chief Justice John Roberts, joined by Justices Scalia, Ginsburg, Breyer and Kagan, found that the case should have ended in 2010, when a federal district judge in San Francisco struck down Proposition 8 for violating the 14th Amendment's equal protection and due process clauses.
The court didn't endorse the district judge's views—rather, the chief justice found, California's failure to appeal that ruling left nothing for appellate courts to consider.

The private citizens who sponsored Proposition 8, which withdrew a right of gay marriage the California Supreme Court had recognized under the state constitution, mounted the appeal to defend their initiative. The Ninth Circuit court, in San Francisco, had permitted their appeal to proceed, and then concluded that Proposition 8 was unconstitutional.

Chief Justice Roberts wrote that, despite the California Supreme Court's own view that initiative sponsors are entitled to defend their legislation in court, the case must be dismissed. Under federal precedents, he said, the initiative sponsors were merely "bystanders" with no standing to appear in court.  "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," he wrote. "We decline to do so for the first time here."  In dissent, Justice Kennedy, a California native, wrote that the majority failed to understand "the basic premise of the initiative process" that has long shaped public policy in his home state. The California initiative process gives legislating power directly to the people, and with it should come the standing to defend that power in court, he wrote, joined by Justices Thomas, Alito and Sotomayor.
Given their views on the Defense of Marriage Act case, there was little reason to believe the justices' lineup on the Proposition 8 suit would have been the same had they ruled on the case's merits. The legal precedent, then, speaks more to future appellate litigation involving state initiatives, rather than anything related to gay marriage.

But the practical impact in California likely will be similar to what would have happened had the court agreed with the Ninth Circuit in striking down the proposition. Gov. Jerry Brown said he had directed state officials to ensure that the original district-court ruling striking down Proposition 8 was implemented.

"After years of struggle, the U.S. Supreme Court today has made same-sex marriage a reality in California," Mr. Brown said.  "Today we can go back to California and say to our own children, all four of our boys, 'Your family is just as good as everybody else's family,'" said Kristin Perry, who brought the California case seeking to get married in the state to her female partner.  But Proposition 8 backers said they believed they had legal grounds to keep the gay marriage ban intact in some parts of California.  The demise of the Defense of Marriage Act will have nationwide impact. Although it is limited to the District of Columbia and 12 states—soon to be 13, when California joins—that currently authorize same-sex marriage, dissenting Justice Scalia predicted it would lead to further advances for the gay marriage movement.

Justice Kennedy's "lengthy lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it" sets the stage for future cases concluding that bans on gay marriage also unconstitutionally disparage and injure the "'personhood and dignity' of same sex couples," he wrote.

Ten years ago, Justice Kennedy wrote an opinion striking down a state ban on gay sex, but stating that it took no view on whether same-sex couples could marry. At the time, Justice Scalia wrote that the "reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples."
Wednesday's decisions showed him prescient.

—Brent Kendall, Geoffrey A. Fowler and Tamara Audi contributed to this article.

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