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Supreme timing, part 4: Why it’s better for DOMA to be heard at the Supreme Court before the Prop 8 trial

Amendment One DOMA trials Marriage equality Prop 8 trial

This post is Part 4 of a five-part series exploring the future of the DOMA and Prop 8 cases at the Supreme Court.  You can read Part 1Part 2, Part 3 and Part 5 at

By Jacob Combs

Yesterday, in Part 3 of this series, I wrote about the different effects that a Supreme Court decision striking down DOMA would have on the status quo of American marital law as compared with a decision striking down Prop 8.  In that post, I argued that because DOMA upended the previous status quo and inserted the federal government into marriage law, which has traditionally been the jurisdiction of state governments, a Supreme Court ruling striking DOMA down would show judicial restraint, allowing the states to fully function as ‘laboratories of democracy’ and provide full marriage rights to gay couples if they wanted to.

I also argued that a decision striking down Prop 8, on the other hand, even if it followed the Ninth Circuit’s narrow ruling limiting the effect of the decision to California only, would involve the Court’s wading in to the unprecedented territory of whether state electorates can use popular votes to take away rights from a specific class of citizens.  Because of this, I wrote that it would be best for the Supreme Court to consider DOMA and strike it down while declining any review of Prop 8, allowing the Ninth Circuit’s decision to bring marriage equality back to California while giving the narrowest possible effect in the country at large.

At first glance, this may seem like a frustrating outcome for marriage equality advocates, and it is admittedly a more limited outcome than many of us would desire.  But as I wrote yesterday, it seems unlikely that the current Supreme Court, given its make-up, would be ready, in 2012 or 2013, to make a broad 14th Amendment case for marriage equality and strike down over 30 marriage bans on the books across the U.S.

A Prop 8 ruling limited to California would be a major victory, restoring marriage equality to the largest state in the union.  But, even more importantly, a decision striking down DOMA could end up setting the groundwork for successful marriage equality litigation in the future.  Today, I will make the argument for why a Supreme Court decision striking down DOMA could change our movement’s entire strategy going forward.

Marriage equality’s history in California: a lesson in ‘separate but equal’

On the surface, the immediate effects of a decision declaring DOMA unconstitutional are apparent: duly married gay and lesbian couples would no longer be discriminated against by the federal government, and would have equal protection under the law in terms of tax treatment, immigration decisions, government benefits and more.  These changes would all take effect, essentially, on day one, although it would of course involve significant changes in how the federal government treats married gay couples.

But there is another element of a DOMA decision that is often under-appreciated: it could very well change the legal landscape and allow for more successful litigation in the future against marriage equality bans, including Proposition 8.  Although this element of a DOMA decision is often over-looked, the end of DOMA would have a major impact on civil unions law.  In making this argument, I want to look specifically at the progression of marriage equality in California, although these arguments could be extrapolated (with some modification, of course) to apply to the other states’ unique legal landscapes.

Marriage equality came to California through a California Supreme Court case called In re Marriage Cases.  Before the decision, California offered gay and lesbian couples in the state the ability to enter into domestic partnerships, which provided all the legal rights and responsibilities under state law provided to married couples, but withheld the official classification of ‘marriage’ from same-sex couples because of Proposition 22, a 2000 statute limiting marriage in the state to heterosexual couples.  The In re Marriage Cases decision held that even withholding just the name of ‘marriage’ was an equal protection violation under the California constitution, since it denigrated same-sex couples’ relationships to a status lesser than that of heterosexual couples.  For a few months in 2008, gay couples could marry in California.

Of course, the California Supreme Court’s decision was effectively overruled by Proposition 8, which amended the California constitution to ban marriage equality.  When Proposition 8 was challenged in California court, the state’s Supreme Court issued a somewhat messy decision in the case of Strauss v. Horton, which upheld Prop 8 but also ruled that the 18,000 same-sex marriages that had been officiated since the Marriage Cases remained valid.

In its decision, the California Supreme Court wrote, “Proposition 8 does not abrogate any of these state constitutional rights [to privacy and equal protection guarantees], but instead carves out a narrow exception applicable only to access to the designation of the term “marriage,” but not to any other of ‘the core set of basic substantive legal rights and attributes traditionally associated with marriage‘” (emphasis and bracketed inclusions mine).

How civil unions will be different in a post-DOMA America

The California Supreme Court’s decision, while based on a somewhat tenuous legal distinction, was facially true in 2009, and remains so today: Prop 8 only affected gay couples’ access to the term ‘marriage,’ not to any of the legal rights that heterosexual married couples enjoy.  In a post-DOMA world, however, this would no longer be the case and, by extension, the California Supreme Court’s logic would fail.  In making this argument, I have to take a step backwards in time before I move forwards.

In 1996, when the Defense of Marriage Act was passed by Congress, no state afforded legal relationship recognition to gay and lesbian couples, let alone marriage rights.  (Although some cities, such as San Francisco, Berkeley and West Hollywood, offered some domestic partnership options in the 1980s and 1990s, it wasn’t until 1999, after the enactment of DOMA, that California became the first state to legally recognize same-sex couples.)  That means that all of the domestic partnership, civil union and marriage gains made across the country in the last 13 years have by default only pertained to rights under state law, since DOMA precluded any discussion or conferral of federal rights.

If DOMA is struck down, or repealed via Congressional action, a gay couple living in California that had entered into a pre-Prop 8 marriage would be afforded the federal legal rights of marriage, whereas a California couple entering into a domestic partnership would be afforded all the state rights of a married couple, but not the federal rights.  The California Supreme Court’s decision that Prop 8 had no effect on “‘the core set of basic substantive legal rights and attributes traditionally associated with marriage” would no longer be true, since couples in marriages would be treated differently from otherwise-identical couples in domestic partnerships, a clear equal protections violation.

States’ roles as ‘laboratories of democracy’

This civil unions argument ties into the argument that I made yesterday, in Part 3, about DOMA’s effect on the status quo of American marital law.  Because DOMA instituted a federal definition of marriage and limited that definition to include only heterosexual couples, it took away the rights of states to fully experiment with offering equal marriage rights to gays and lesbians.  All those states could offer to their gay and lesbian citizens was half-equal marriage, protected under state law but vulnerable under federal law.  Moreover, as the Commonwealth of Massachusetts argued in court, DOMA puts states with marriage equality at risk of losing federal funds that could be rescinded by the U.S. government under the rationale of DOMA.

A U.S. Supreme Court decision striking down DOMA would create a new legal reality and open up the door to challenging Prop 8 (and other state marriage bans) on new equal protection grounds both at the state and federal levels.  These lawsuits would essentially be able to make the claim that civil unions and domestic partnership laws in states across America would have to be converted into marriage equality laws in order for them to pass constitutional muster on equal protection grounds.  This argument would no doubt find various levels of success in different states based on their political inclinations, but it would have an enormous impact on the push for full marriage equality, since the argument that civil unions and marriages offer the same rights would no longer be valid.

In light of this possibility, one could make the argument that a DOMA decision by the Supreme Court would essentially preclude a decision on Proposition 8, since it would so dramatically affect marriage equality and civil unions law in states across the country.  At the very least, because of the civil unions issue, it it clear that a DOMA decision at the Supreme Court before a Prop 8 decision would be a more logical one, since striking down DOMA would affect future Prop 8 litigation, but striking down Prop 8 would have no effect on DOMA.  Before we can truly fight the battle for full federal marriage equality in the courts, we have to overcome DOMA, which only allows gay couples equality under state law, and perpetuates discrimination against them by the federal government.

Tomorrow, in Part 5, the final installment of this series, I will look at why the marriage equality movement should care about the path which marriage lawsuits take through the court system, and explore how we can ensure that the gains we make in the courts are long-lasting and create a strong foundation for full equality for LGBT Americans.


  • 1. whabbear  |  June 14, 2012 at 1:57 pm

    Eric: Well, we were both wrong! LOL!

  • 2. [email protected]  |  June 14, 2012 at 2:02 pm

    I am not sure I would agree with all your arguments, but certainly agree that the Supremes would be well advised to duck Prop 8 and go with the challenge to DOMA. At least two courts of appeal have held it to be unconstitutional, with none upholding DOMA. This Court has shown it is activist in anticipating where the law should go, even if it's decisions don't always reflect this point. I have little doubt, after reading the first four Parts about what the Court should do and why. I am anxious to read Part 5 to find out how the author believes that activists can influence the ultimate decision and why they should care. This has been an extraordinarily thorough article taken as a whole and a joy to read.

  • 3. koyomi  |  June 14, 2012 at 4:05 pm

    If they ruled DOMA unconstitutional, would it change the facts of the Prop 8 case enough for SCOTUS to vacate it? I would hope they wouldn't have the votes to do that, but if they wanted to be jerks about it, that would be one way to do so.

  • 4. DaveP  |  June 14, 2012 at 11:00 pm

    Nope, they are not legally related. At this point the Prop 8 trial is concerned with whether a STATE can add an amendment to the state constitution that singles out one particular group and takes away a right that has already been recognized.

    DOMA is the question of whether the FEDERAL government (not the states) can make a law that effectively 'overrides' the marriage laws established by the states, and denies recognition of a marriage at the federal level, even thought the state says the couple is legally married.

  • 5. [email protected]  |  June 14, 2012 at 11:31 pm

    I agree with DaveP that the cases are very different issues between DOMA and California's Prop 8. the differences to individual couples, I present the following personal ways how the two cases are different. My husband and I have been married twice, the first was during then Mayor Ga vin Newsom ordered San Francisco same sex couples to be married. The state Supremes overturned that law. About a year. Later, the Supreme Court upheld our second marriage. Then came Prop 8, which overturned marriages for the future but agreed that we were married legally in this state. Later couples have not been given legal approval. But because of DOMA, the Feds don't. Recognize our marriage. We each pay separate federal taxes each year, to file our joint state taxes, we have to first complete a third tax return for the Feds which we refer to as our fake tax return and it forms the basis for the state law. If I die with a large estate, Josh will have to file a federal estate tax return. And on and on. A decision against DOMA would eliminate this peculiar double status. A decision not to take up Prop 8 would leave the constitutional amendment as violative of federal rules of constitutional principles.

  • 6. Seth from Maryland  |  June 14, 2012 at 9:24 pm

    Ot: just wanted say to congrats to Denmark for being the next country to have marriage equality

  • 7. Guest  |  June 15, 2012 at 7:51 am

    Don't forget the Mexican state of Quintana Roo, whose Secretary of State recently ruled that same-sex marriages can be performed there.

  • 8. goldentriangleglbt  |  June 15, 2012 at 5:33 am

    Mr. Combs I really am impressed with this body of work. Do you know what the history is with the supreme court finding such a large number of state laws unconstitutional at the same time? I have a really hard time getting my reasoning around SCOTUS taking up DOMA and Leaving Prop 8 to fester and I have to say I am not very sure that the circuit courts affirmation of the lower courts ruling actually restricts its scope. since they did not reverse the lower court are they not actually affirming and amending to the opinion? Or is it cutting and replacing? none the less great work on this series

  • 9. Lymis  |  June 15, 2012 at 6:17 am

    I know you are only doing the legal analysis, and it certainly seems that purely legally, your analysis holds.

    But I think an even bigger effect in the short term will be that it takes aways the argument from gay marriage opponents that "we can give gay people equal rights without changing the traditional meaning of marriage by creating civil unions for them."

    Not that they ever believed that – they fight just as hard against civil unions when that's what's up for consideration, when if they meant what they said, they'd be actively pushing for civil unions everywhere rather than fighting for constitutional amendments that ban both.

    But the voters will no longer have the half-way point to feel warm and fuzzy about. They will essentially be presented with, "Do you want gay people to have equal rights or no recognition at all?" At the time DOMA was passed, the answer would pretty universally have been "no rights at all" but that has changed.

    Even the polls that show a bare majority supporting marriage equality also show a huge majority supporting at least some rights and recognition. There's no way of knowing, but it sure seems to me that in today's society, most of those who support "some" recognition will round up to equal rather than round down to "none."

    Even when it is a flat out lie based on the amendment language, marriage equality opponents still feel the need to lie and declare that "this just protects traditional marriage, it doesn't take away anything gay people can't get another way." Once that lie is clearly exposed, the equality snowball is going to pick up a lot of speed.

  • 10. Lymis  |  June 15, 2012 at 6:22 am

    Everyone focuses on the idea of Full Faith and Credit to argue whether or not if DOMA sec 3 falls, every state will have to recognize out of state marriages.

    I have a different question. Let's assume that states do not have to recognize out of state marriages.

    Does the federal government have to? What will the FEDERAL effect be on a same-sex couple who marries in Massachusetts and moves to Mississippi?

    Straight couples who marry in Massachusetts don't have to remarry in Mississippi. The federal government recognizes their Massachusetts marriage even though that's not their state of residence.

    Granted that such a same sex couple won't have any benefits from Mississippi, will they still be able to file federal income tax jointly, receive social security benefits, apply for immigration, and all the other purely federal benefits?

  • 11. mtnbill  |  June 15, 2012 at 9:24 am

    Given the modern economy with 401(k), pensions, social security, and other financial arrangements today, I'm not sure how the administrative nightmare of federal recognition and non-state recognition would play out. During the 1950's and early 1960's with mixed race marriages, all these federally regulated benefits and arrangements did not play such a major roll as at present.

    The IRS already has to deal with CA and NV community property status for filing income tax returns (albeit as individual rather than married, but you can split the joint income, etc.).

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