The headline in The Onion, which we noted earlier today, pretty much says it all: “Impatient Nation Demands Supreme Court Just Get To The Gay Stuff.” Today, the last day of the Term, SCOTUS granted our wish, issuing its long-awaited rulings on gay marriage in California and on the federal Defense of Marriage Act.
Last night, I attended the New York City Bar Association’s annual reception and cocktail party celebrating LGBT Pride Month. M. Dru Levasseur of Lambda Legal and Lisa Linsky were honored for their work advancing LGBT rights. In her eloquent remarks, Linsky noted that despite all the progress of our community, and regardless of what the Supreme Court rules today, many battles remain to be fought.
How many more battles, and of what intensity? Let’s find out what the Court just decided, on the tenth anniversary of the landmark decision in Lawrence v. Texas….
Please note the multiple UPDATES added below.
In Windsor, the challenge to the Defense of Marriage Act, the law barring federal recognition of same-sex marriage, the Court struck down DOMA as unconstitutional. The vote was 5-4 and Justice Anthony Kennedy wrote for the Court, as widely expected. Chief Justice John Roberts, Justice Antonin Scalia, and Justice Samuel Alito all filed dissents.
As summarized by SCOTUSblog, on its excellent liveblog, the Court held that DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. From Justice Kennedy’s opinion: “DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty.”
Now that the LGBT community has prevailed — I was nervous about this case, despite all the good signs, such as the lower-court wins — I can share with you an amusing quip from Professor Kenji Yoshino of NYU Law School about Edith Windsor, the delightful and colorful plaintiff in the case. At a Supreme Court term in review panel yesterday, he said, “I love that the gay rights movement has managed to weaponize its adorable elderly lesbians.”
In Windsor, the weapon hit its target, and DOMA went up in smoke. But as Paul Smith of Jenner & Block observed at the same panel, many complexities remain to be worked out in the weeks and months ahead. Couples who got married in one state and moved to another state could encounter difficulties in obtaining federal benefits. And the definition and treatment of marriage vary from federal law to federal law. (It’s probably safe to say, though, that we can end our coverage of the so-called “gay gross-up” at large law firms.)
Here is the opinion in United States v. Windsor. Congratulations to the fabulous Edith Windsor and the many lawyers who litigated tirelessly against DOMA over the years.
In Hollingsworth v. Perry, the challenge to California’s Proposition 8 ban on gay marriage, the Court found that the petitioners lacked standing to appeal the district court’s order. The vote was 5-4 and Chief Justice Roberts wrote for the Court, as widely expected, but check out who joined him: Justices Scalia, Ginsburg, Breyer, and Kagan. Justice Kennedy dissented, joined by Justices Thomas, Alito, and Sotomayor.
The Supreme Court vacated the decision of the Ninth Circuit and remanded with instructions to dismiss the appeal for lack of jurisdiction. It’s good to give clear instructions to Judge Reinhardt; otherwise who knows what he might do. (Today marks another loss for him this Term, on the heels of that unanimous summary reversal the other day.)
Here is the opinion in Hollingsworth v. Perry. I wonder how David Boies and Ted Olson feel right now — pleased that their particular clients can get married, or disappointed that the Supreme Court didn’t do more?
What will happen next to gay marriage in California? What is the scope of Judge Vaughn Walker’s ruling that struck down Proposition 8? Many questions remain in light of the Perry decision, and it could take quite some time to resolve them.
We expect to have more on these major rulings later today, so check back soon.
UPDATE (10:55 a.m.): David Boies just spoke from the steps at One First Street, declaring that today “is a great day for America.” Per Boies: ten years ago, in Lawrence v. Texas, the Court took the first important step to guarantee all Americans were equal citizens under the law; today, the Court brought us that much closer to true equality. Boies expressed the view that, based on the DOMA opinion, when a marriage case finally does come to the Supreme Court on the merits, marriage equality will be the law throughout the land.
There will be much further discussion and analysis about how the decision in Perry affects other couples in California. For the time being, we will say this: the Supreme Court has dismissed the appeal challenging a final order from the trial court. It would appear, then, that the order will go into effect. And it appears that this final order purports to prohibit the Attorney General and the Governor from enforcing Prop. 8.
There could well be new challenges to the scope of that order. But for the time being, the order appears to be in effect and to prevent enforcement of Proposition 8 statewide.
The California governor and attorney general, who declined to defend Prop 8 in court, will probably be fine with being precluded from enforcing Proposition 8. But one could imagine other state or local officials involved in the granting of marriage licenses who might have problems with Judge Walker’s order.
UPDATE (11:55 a.m.): Here are some thoughts from Professor Vikram Amar of UC Davis Law regarding what happens next to same-sex marriage in California.
UPDATE (12:45 p.m.): Here is the statement of California Governor Jerry Brown (reflecting his consultation with Attorney General Kamala Harris): “I have directed the California Department of Public Health to advise the state’s counties that they must begin issuing marriage licenses to same-sex couples in California as soon as the Ninth Circuit confirms the stay [of Judge Walker's order] is lifted.”
Hollingsworth v. Perry [U.S. Supreme Court]
United States v. Windsor [U.S. Supreme Court]
Lisa A. Linsky to Receive NYC Bar Association’s Art Leonard Pride Award [McDermott Will & Emery]
Impatient Nation Demands Supreme Court Just Get To The Gay Stuff [The Onion]