Supreme Court strikes down Section 3 of DOMA, sends Prop. 8 back to California


Posted by AzBlueMeanie:

EqualThe constitutional rights of same-sex couples advanced incrementally today, but it was not a landmark decision establishing a bright-line constitutional equal protection right to same-sex marriage.

The U.S. Supreme Court today in United
States v. Windsor
struck down Section 3 of the federal Defense of Marriage Act (DOMA) as unconstitutional in a 5-4 decision. Justice Anthony Kennedy, as he has in other gay rights cases, wrote the majority opinion of the court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The court held that DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by Fifth Amendment equal protection. "DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty."

What is important in this decision is that the court adopts a "heightened scrutiny" standard of review, rather than the "rational basis" standard of review previously applied by courts in these cases. Justice Kennedy writes there is a "careful consideration" standard: In determining whether a law is
motivated by improper animus or purpose, discriminations of an unusual
character especially require careful consideration. DOMA cannot survive
under these principles.

The federal statute is invalid, for no
legitimate purpose overcomes the purpose and effect to disparage and
injure those whom the State, by its marriage laws, sought to protect in
personhood and dignity. DOMA seeks to displace this protection and
treat those persons as living in marriages less respected than
others. Therefore, it is unconstitutional.

The effect of this opinion is that same-sex couples who are legally married are entitled to equal treatment under federal law. The heightened scrutiny "careful consideration" standard of review announced today may now be used to challenge state laws which previously have been upheld under the rational basis standard of review. It is questionable whether state laws can survive a new equal protection challenge under the "careful consideration" standard of review announced today in Windsor.

Here is the opinion in

UPDATE: The Court did not address the constitutionality of Section 2 of the
Defense of Marriage Act, leaving to another day the question of
whether the other thirty-eight states can refuse to recognize same-sex

As many court observers predicted, the Court disposed of California's Prop. 8 claim, Hollingsworth v. Perry, on grounds of lack of standing. Chief Justice John Roberts wrote for the majority in a 5-4 decision. Justice Kennedy dissented, joined by by Justices Thomas, Alito, and Sotomayor. The decision of the Ninth Circuit is vacated and remanded.

Chief Justice Roberts writes that the petitioners did not have standing to appeal the district court order. "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. We decline to do so for the first time here." The Ninth Circuit was without jurisdiciton to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.

SCOTUSblog's Amy Howe provides a Plain English take on Hollingsworth v. Perry, the challenge to the constitutionality of California's Proposition 8,
which bans same-sex marriage:

After the two same-sex couples filed
their challenge to Proposition 8 in federal court in California, the
California government officials who would normally have defended the law
in court, declined to do so. So the proponents of Proposition 8
stepped in to defend the law, and the California Supreme Court (in
response to a request by the lower court) ruled that they could do so
under state law. But today the Supreme Court held that the proponents
do not have the legal right to defend the law in court
. As a result, it
held, the decision by the U.S. Court of Appeals for the Ninth Circuit,
the intermediate appellate court, has no legal force, and it sent the
case back to that court with instructions for it to dismiss the case.

Here is the opinion in

SCOTUSblog's Kevin Russell explains What happens Next?:

If the Court were to hold that the petitioners in Hollingsworth v. Perry the
Proposition 8 initiative sponsors — do not have Article III standing to
appeal, what then?  What would become of the judgments below, and of
Proposition 8 more broadly?

The Supreme Court presumably would reverse and vacate the judgment of
the U.S. Court of Appeals for the Ninth Circuit, since the Proposition 8
proponents were also the only parties to appeal to that court
from the district court judgment. 

If that were to happen, the Ninth
Circuit’s opinion would no longer have precedential effect that would
govern future cases challenging California’s (or any other state’s)
refusal to recognize same-sex marriages.  (In any event, it is likely
the court of appeals will next consider the issue of same-sex marriage
not in a California case but instead in a case
coming up from Nevada
.  Because the prohibition in Nevada law does not
reverse a previous right to same-sex marriage in that state, the
rationale of the Ninth Circuit’s opinion in Perry would not be directly applicable to the Nevada case, regardless of whether the Perry decision
retains any precedential value.  That Nevada case will instead require
the court to decide whether the Fourteenth Amendment permits Nevada to
afford same-sex couples all of the benefits and responsibilities of
marriage (under the moniker of “domestic partnerships”), but to deny
them the status of state-sanctioned “marriage” itself.)

But what about Judge Walker’s judgment and injunction in the district court in Perry?  What would become of that?

Most likely, nothing — it would stand. In the district court, the named defendant state and local officials
did appear, and there was complete Article III adversity between them
and the plaintiffs.  Judge Walker’s injunction was entered against the
named defendants, and it altered the legal relationship between them and
the plaintiffs.  Therefore it should remain intact.

So what effect does that injunction have?  It reads as follows: 
“Defendants in their official capacities, and all persons under the
control or supervision of defendants, are permanently enjoined from
applying or enforcing Article I, § 7.5 of the California Constitution.” 
(That would be Proposition 8, which provides:  “Only marriage between a
man and a woman is valid or recognized in California.”)

What would it mean if that injunction remained in place?

Well, for one thing, it would mean that the two couples who sued in Perry
— Kris Perry and Sandy Stier, and Paul Katami and Jeff Zarrillo — would
receive marriage licenses from the defendant Clerks of Alameda and Los
Angeles Counties, respectively.

The Los Angeles Times reports Court opens way for gay marriage in Calif. :

The court’s action, while not a sweeping ruling, sends the case back to
California, where state and federal judges and the state’s top officials
have said same-sex marriage is a matter of equal rights.

So, the Supreme Court did not rule on the constitutionality of gay marriage, but the
effect of Hollingsworth will be to allow same-sex marriage to resume in California.

NBC News reports Supreme Court strikes down Defense of Marriage Act, paves way for gay marriage to resume in California:

President Barack Obama placed a phone call from Air Force One to the
two gay couples who had challenged Proposition 8 case. He told them,
“We’re proud of you.” One couple immediately invited him to their

David Boies, a lawyer who argued against Proposition 8,
said that the rulings took the country closer to realizing the
Declaration of Independence’s guarantee that all men are created equal.

“It’s a wonderful day for America,” he said.

The combined effect of these two decisions means that the struggle for civil rights for gays and lesbians took a step forward today. As Dr. Martin Luther King, Jr. reminded us, "The arc of the moral universe Is long, but It bends toward justice."