Equal-ish

by David Link on June 26, 2013

Windsor was a big decision, but it was not a decision about equality — due respect to all the Facebook users who have replaced their photos with equal signs.

That’s not a bad thing at all.  A Supreme Court opinion squarely addressing the many constitutional questions about the equal protection clause (not least of them being what standard of review to use) would have gotten the court and the country into some very difficult terrain.  There was no need for that in order to overturn DOMA.  The opinion also does not say that marriage is a fundamental right, though it comes closer to that.

Justice Kennedy’s reasoning leaves breathing room for politics.  With only 14 states now recognizing same-sex marriage (I continue to count DC as a state, and of course today’s other opinion brings California fully into the fold), Kennedy again demonstrates the ability to balance justice and pragmatism in the area of gay rights.

But there’s one other big piece of political news.  The dynamics of marriage lite have now shifted.  Only full marriage comes within the court’s ruling, a point made by both majority and dissenting justices.  States will still have the ability to take half-measures, and I expect some will.  But by doing so, they will be enacting laws they cannot expect to be fully equal to marriage.  If they have any doubts, they can refer to Windsor.

So if the political argument continues to be about equality (and it should), anyone promoting civil unions as a political compromise will explicitly be compromising that.  Politics is made of compromise, but even though today’s opinion does not rest on the equal protection clause, that constitutional protection is ever more visible through the political haze.

Expect to hear more about it.

{ 19 comments }

Tom Scharbach June 26, 2013 at 4:47 pm

… but even though today’s opinion does not rest on the equal protection clause …

Technically, that is correct, in a narrow sense. The decision (see Holding 2, and pages 13-26) is based on deprivation of the 5th Amendment guarantees of “basic due process and equal protection principles” rather than the 14th Amendment equal protection guarantees.

It is a legal distinction without a practical difference, looking forward. The opinion provides an equal protection map forward to a Loving-equivalent decision, and contains the language necessary for lower courts to use in taking the steps toward that decision.

The eventual legal decision in our favor doesn’t render politics irrelevant, though. To set the stage for a Loving-equivalent decision, we are in for a slog, and we need more states.

By my calculations, roughly a third of Americans now live in states with marriage equality. If we convert the marriage-equivalent civil union states, that will bring us up to about 40%.

That is probably enough to create a legally untenable mess that the Court will feel compelled to step into and straighten out, but we’d be in a lot stronger position if we could get to 50%.

Tom Scharbach June 26, 2013 at 4:53 pm

… due respect to all the Facebook users who have replaced their photos with equal signs …

You do realize, I hope, that the red-equal logo so prominent on FB is an expression of support for equality rather than a declaration of “Mission Accomplished!” The “equal” logo has been around for years, and the “paint FB red” campaign was started in March, during arguments.

Tom Scharbach June 26, 2013 at 5:01 pm

So if the political argument continues to be about equality (and it should), anyone promoting civil unions as a political compromise will explicitly be compromising that.

“Explicitly” being the operative word. The purpose of civil unions has always been to preserve and institutionalize inequality, which is another way of saying that the sole appeal of civil unions was that they were not civil marriages.

Houndentenor June 26, 2013 at 5:10 pm

You make a point that I hadn’t considered. I’ll ask my lawyer friend (the one raised by his mom and her female partner whose law review article on same sex marriage was quoted in the Iowa case!) what he thinks. I don’t know whether or not the Federal government will (or can) accept a civil union from a state as marriage under federal law. I suspect that’s another case for another day.

Kosh III June 26, 2013 at 5:55 pm

Help me understand.
A couple married and residing in Mass. can get SS and other federal benefits.
What about a couple who marry in Mass. but live elsewhere like Tennessee. Will the feds recognize that marriage even though Tenn. does not?

I expect even more vicious rhetoric AND legislation from Tennessee’s alleged conservative/teaparty/gop fascists.

Houndentenor June 26, 2013 at 6:30 pm

That is my understanding. Tennessee will not recognize that marriage under state law but the federal government will recognize it under federal law. This could still create problems for the couple as much that would impact their lives is under state, not federal, jurisdiction.

Jorge June 26, 2013 at 9:27 pm

My head hurts.

I think the majority opinion is compelling, but I think the dissents are more reasoned. It should be a political decision from the get go. But then I get to Alito’s opinion, decide I agree with its merits argument the most, and he makes some statements that lead a few giant steps toward the Court’s opinion.

And that Prop 8 case… wow!

Kosh III June 27, 2013 at 8:59 am

Those of us in states run by bigots are still considered unequal and inferior. We don’t get SS or other federal stuff unless we live in a state that allows marriage equality and are married. Getting married in another state does nothing beyond our own symbolism.

Is that correct?

Houndentenor June 27, 2013 at 6:31 pm

I don’t think that is correct. The STATE you live in may not recognize your marriage and that will be a problem, but the federal government will.

JohnInCA June 27, 2013 at 10:12 pm

Maybe. Different federal agencies determine marital status differently (chiefly by “place of celebration” or “place of residency”) so it’ll matter just which federal “stuff” is in question.

However, the big “if” at the moment is what the POTUS does. He’s said he directed his people to look into what can be made to change federal policy/procedure to extend benefits/rights where possible, so the exact fall-out of that is up in the air.

Long story short? Tomorrow you *can’t* get spousal SS benefits in Florida, but you *can* claim spousal immunity in federal court.

Houndentenor June 28, 2013 at 9:38 am

I think the real problem is going to be federal programs administered by the states. I don’t see an openly anti-gay governor like Perry acknowledging gay marriages in any way. At of course we could be in danger of lack of implementation if an anti-gay Republian were elected to head the executive branch.

Jorge June 27, 2013 at 9:14 am

Getting married in another state does nothing beyond our own symbolism.

I guess not if your state refuses to recognize it.

Don June 27, 2013 at 1:10 pm

What I’ve been reading is that if your state does not recognize gay marriage, then you have no federal benefits, even if you were married in a state that recognized it.

The rub starts where federal regulations are concerned. Some say you are entitled to a benefit when you get married. Others say when “your state recognizes your marriage.”

It’s been tossed around that Obama could direct a clarifying executive order that would say feds recognize any marriage based on “where it was performed” rather than “where you reside.”

I’m not sure he can just waive the pen in the air and do that. I’ll leave it to the legal scholars. But don’t be surprised if you see that come up in the coming days/weeks.

It will be especially important for servicemembers. Many have gotten married in a gay marriage state, lived there, and get transferred to a base in Georgia. Hagel’s gonna have to figure that one out.

Houndentenor June 27, 2013 at 2:03 pm

The lawyers that I have been talking to the last few days believe that the end of DOMA means that your marriage will be portable under federal law regardless of whether or not a particular state recognizes that marriage. That will perhaps require some clarification in policy from the executive branch, especially the IRS (can you file jointly for federal but not state income taxes?), immigration, etc. Those clarifications should not be difficult.

Mark F. June 28, 2013 at 2:43 pm

The problem is that there are specific laws in the Federal Code that would seem to preclude some same sex couples getting certain benefits if they moved from state to state. It’s about as clear as mud.

Houndentenor June 28, 2013 at 3:19 pm

Are those laws that would have to be changed by Congress or rules that can be changed by executive order? (Or some combination of the two.) I think we can get the Obama administration to change a few rules to implement the DOMA appeal. If we have to get anything that benefits gay people through the Republican-controlled House we are SOOL.

Jorge June 29, 2013 at 10:16 am

Looks like we need a federal Defense of Gay Marriage Act (DOGMA). Sorry, it infringes on the power of the states to extend dignity to those it chooses.

Tom Scharbach June 28, 2013 at 7:40 pm

I note that the 9th Circuit has lifted its stay, and marriage equality is now a fact in California.

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