Thursday, December 26, 2013

The Fallout of DOMA and the Future of Same-Sex Marriage Suits

     Justice Antonin Scalia has proven to be an accurate prognosticator regarding the impact of the decisions of his colleagues on the Court.  Last Friday, federal district court Judge Robert Shelby struck down Utah's ban on same-sex marriage.  The Washington Post predicts 2014 will be a landmark year for similar suits and could open the floodgates into the federal courts.  Based on Judge Shelby's ruling and last term's ruling in United States v. Windsor, the future of these types of suits is unclear.  
     Many legal scholars have argued that the Supreme Court's ruling in Windsor is ambiguous in that it is unclear if the Court shifted the conflict back to the states to decide individually how they want to regulate marriage, or if it is illegal to ban same-sex marriage in every state.  It is important to point out that the Defense of Marriage Act (DOMA) was a federal statute, which did not federally recognize same-sex marriages in states where it was legal.  Now that DOMA has been ruled unconstitutional, does that mean all states must also recognize same-sex marriage?
      Judge Shelby's most important line in his opinion addresses this question; "Applying the law as it is required to do, the court holds that Utah’s prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process under the law. The State’s [Utah's] current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional."
     Utah tried to file an emergency stay in the circuit court of appeals to allow their ban on same-sex marriage to continue throughout the appeals process.  The 10th Circuit did not grant a stay, which means Judge Shelby's ruling puts a stop to the ban.  At the root of the issue in Utah are major questions about constitutional and democratic rights.  Marriage has typically been regulated by the individual states, not the federal government.  Utah's constitutional amendment banning same-sex marriage passed democratically yet the plaintiffs and Judge Shelby believe it violates rights explicitly outlined in the Constitution.  
     Our nation was founded on democracy, yet many founders were afraid of tyranny of the majority.  The United States is a nation of laws and rights safeguarding against certain majorities.  The Supremacy Clause, on its face, supersedes state laws when the two clash.  Protecting the rights of certain minorities is more important than democratically passed majority initiatives.  According to Judge Shelby, "...the Court has held that the Fourteenth Amendment requires that individual rights take precedence over states’ rights where these two interests are in conflict."  When interpreting the Constitution, it is important to look at the history and debates involved within each provision.  The Fourteenth Amendment was establish after the Civil War and was created to apply specifically to the individual states to safeguard against tyranny of the majority against certain minorities.  By the same token, when applied to Utah's (and other states' same-sex marriage bans) it should protect homosexuals who wish to marry each other.
     Furthermore, when the courts apply the strict scrutiny* or compelling state interest test, same-sex marriage bans should fail each time.  The courts apply the compelling state interest test when states institute measures denying certain rights to a particular group for a general interest, say for public safety.  Utah has no standing to apply for an emergency stay on their ban because they do not have a "compelling interest" to deny individuals the right to marry.  Supporters of the measure in Utah maintain that there is no explicit "right" to marry in the Constitution.  This "right" goes both ways and the state does not have a compelling interest for, say, public safety for denying same-sex couples to marry. 
     The judges in these cases are not exercising judicial activism but rather applying the text and original meaning of the Constitution to these real problems.  The floodgates will open in the federal court system with many more suits challenging same-sex marriage bans.  The states' have a general Tenth Amendment argument to regulate marriage, but those measures must be in line with the rest of the Constitution.  The bans on same-sex marriage demean and discriminate against same-sex couples and have no legal backing to remain law.  
     I do not see the case in Utah going to the Supreme Court especially since the Court just issued a landmark ruling on same-sex marriage.  It is also important to point out that in Hollingsworth v. Perry, the case challenging California's Proposition 8 measure banning same-sex marriage, the Court denied to hear the case on standing.  If the states continue to lose in the lower courts, I would wager that the Supreme Court would not hear their challenges on standing grounds as well, but prognosticating the Supreme Court can sometimes be more challenging than winning the lottery.          

* UPDATE: September 9, 2014 It is not clear under what level of scrutiny the Supreme Court will review same-sex marriage cases as it avoided this question in the recent DOMA case of United States v. WindsorIn addition, most lower courts are not examining the issue of same-sex marriage under strict scrutiny but rather intermediate scrutiny or rational basis.  

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