US Supreme Court opens door to marriage equality, UK coming next

29 June 2013 by Matthew Flinn

Hollingsworth v Perry – No. 12–144 – Read judgment

United States v Windsor – No. 12–307 – Read judgment

In rulings that have the potential to influence the jurisprudence of courts around the world, the Supreme Court of the United States has handed down two landmark decisions pertaining to the issue of same-sex marriage.

The right of gay and lesbian couples to wed remains one of the most controversial and debated civil rights issues of our time. However, the ground has been shifting with increasing rapidity in recent years and months. The direction of change is clear. There are now fifteen countries which permit or will permit same-sex marriages, including most recently Uruguay, New Zealand and France. With bills steadily progressing through the Parliamentary process, there is a strong possibility that England, Wales and Scotland may soon be added to the list.

The situation in regards to same-sex marriage within the United States is complicated, due to its federal structure and the interaction of State laws and Federal laws. At present, thirteen States permit and recognise same sex marriages, several States offer an alternative form of legal recognition such as civil unions or a more limited basket of rights, a number of States ban same-sex marriage but are silent on alternative unions, and some States (the majority) have banned any form of legal recognition to same-sex relationships at all. This somewhat confusing picture provides the context for the two decisions handed down on 26 June by the Supreme Court, and could be said to confine the impact of its decisions. Nevertheless, as the debate rages on in legislative chambers, courtrooms, bars and pubs across the US, the UK and many other jurisdictions, some of the reasoning emerging in the opinions of these decisions could have a significant impact in the future.

One of the cases, Hollingsworth v Perry, pertained to the legality of “Proposition 8”, which was an amendment to the constitution of the State of California banning recognition of same-sex marriages. The amendment was put on the ballot of California voters for the general elections of November 2008 – the same elections which saw Senator Obama elevated to the Presidency of the United States – and passed by a margin of 52% to 48%. The amendment was immediately challenged in the courts, and two primary issues arose, one going to the substantive issue of discrimination, and the other going to the more technical legal issue of standing.

Due process and equal protection

The substantive issue was whether or not the amendment to the State Constitution violated the due process and equal protection clauses contained in the Fourteenth Amendment of the Federal Constitution and was therefore, under Federal law, unconstitutional. At first instance, and on appeal, the courts decided that it did. In the first instance District Court, Judge Vaughn Walker said:

An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

The more technical legal question of standing arose as a result of the decision of the California State Government not to defend Proposition 8. In the absence of a Government defence, a number of interest groups applied to intervene and act as its Defender, with the mantle ultimately being assumed by ProtectMarriage.com, led by Mr Dennis Hollingsworth. The question was whether or not that group had legal standing to appeal the District Court’s decision and defend the law in the Federal appeal courts, given that it was difficult to conceive how the ability of gay and lesbian people to marry injured the interest group, or indeed had any impact on anyone except those who wished to marry and could not.

The United States Supreme Court ultimately disposed of the case by addressing the question of standing, concluding that ProtectMarriage.com was not sufficiently affected by the law so as to have legal standing to defend it. Federal jurisprudence on standing required litigants seeking relief to have a “concrete and particularised injury”. A keen or indeed passionate interest in an issue was insufficient:

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 declined to do so for the first time here.

Not the usual ideological lines

The decision, which was upheld by a majority of 5-4, was striking in that the justices did not split along what are commonly perceived to be the usual ideological lines of liberal versus conservative. Chief Justice John Roberts, who wrote the majority opinion, was joined by the renowned conservative Justice Antonin Scalia, along with three more liberal Justices in Ruth Bader Ginsberg, Stephen Breyer and Elena Kagan.

The up-shot was that the ruling of the District Court that Proposition 8 was unconstitutional was reinstated, and gay marriages are recognised in the State of California once more. In disposing of the case in this technical way, the Supreme Court avoided making any general pronouncements about the constitutionality of State laws banning gay marriage. However, it has the effect of leaving the impressive judgment of Vaughn Walker intact, and in no way undermined. That judgment included some eighty findings of fact based upon a lengthy review of detailed evidence, including findings that, for example, individuals do not choose their sexual orientation, that same-sex couples are identical to opposite sex couples in terms of characteristics relevant to a successful marriage, and that religious beliefs that same-sex relationships are sinful or inferior to heterosexual relationships are harmful to gay and lesbian people. It is a judgment that is likely to be drawn on in courts worldwide as a rich source of substantive and factual argument in favour of gay marriage, and in opposition to laws prohibiting it.

Tying the Windsor knot

The other case decided by the Supreme Court, United States v Windsor, has rather larger potential ramifications. It related to a claim brought by a widow, Ms Edith Windsor, who had inherited the entire estate of her female spouse (their marriage, performed in Canada, was recognised by the state of New York). She was complaining that she had been denied Federal tax exemptions granted to heterosexual married couples. This was pursuant to section 3 of the Defence of Marriage Act (DOMA), which defined marriage for the purposes of Federal law as a union between a man and a woman, thereby denying Federal recognition, and over a thousand associated benefits and rights, to same-sex marriages that were recognised at State level. As a result, Ms Windsor was hit with estate taxes amounting to around US$360,000.

Once again, the substantive issue was whether or not the relevant provision of DOMA violated the equal protection clauses of the Federal constitution, and once again, the refusal of the Government (this time the Department of Justice) to defend the law raised the issue of the standing. In this case, the law was defended supported before the Supreme Court by the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives.

In this case, however, the Supreme Court did not shy away from deciding the case on its merits. Setting aside the question of whether BLAG had standing, it said that even though the Department of Justice agreed that DOMA was unconstituional, it was continuing to enforce the law, and it had suffered sufficient injury in being ordered by the courts below to reimburse Ms Windsor. In addition, the legal arguments for both sides had been clearly articulated through the participation of BLAG. There was therefore no obstable to proper consideration being given to the matter. It then went on to hold on the merits that section 3 of DOMA was indeed unconstitutional, in that it violated the Equal Protection clause contained in the Fifth Amendment of the Federal Constitution. The decision was another 5-4 split, although this time the division represented what many political commentators would describe as the ideological divide of the court, with the majority opinion being written by Justice Kennedy, who is often perceived as the court’s “swing vote”.

The strident terms in which the majority expressed its view is striking. In particular, the following paragraph contains a number of devastating indictments of the law:

DOMA’s principal effect is to identify a subset of state¬-sanctioned marriages and make them unequal. The prin¬cipal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contra¬dictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of State law but unmarried for the purpose of Federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA under¬mines both the public and private significance of State-¬sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of Federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects…and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

The opinion went on to say:

What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconsti¬tutional as a deprivation of the liberty of the person pro¬tected by the Fifth Amendment of the Constitution.

Scalia’s point

It should be made clear at the outset that this decision does not have the effect of requiring States across America to permit same-sex couples to wed. The majority opinion confirmed that the regulation of marriage fell within the sphere of State competence. What was unconstitutional was the denial of recognition at a Federal level to a class of persons that the State had sought to recognise and protect. This was essentially a federalist argument.

However, there is a strong argument that the broad reasoning of the majority decision paves the way for a raft of cases across the United States in which State bans on gay marriage are challenged in the courts. If denying Federal rights and benefits to same-sex couples who are married at the State level demeans their relationship and discriminates against them, then it is difficult to see how denying same-sex couples the right to wed in the first place is not also discriminatory, if not more so. This point was picked up on by Justice Antonin Scalia. He disagreed that the Court had jurisdiction to hear the case, but was also critical of the majority for failing to acknowledge the likely (and, he said, intended) end-point of its reasoning:

In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” which State legislatures conferred upon them, will of a certitude be similarly appalled by State legislatures’ irrational and hateful failure to acknowledge that “personhood and dignity” in the first place… As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.

Regardless of one’s view of the tone of his dissent, I suspect that Justice Scalia is right about this point. The reasoning of the majority is strong and clear in accepting that laws denying benefits, and perhaps more importantly, recognition and acceptance, to same-sex couples are discriminatory. For the moment, the majority would say, any argument that State bans on same-sex marriage are unconstitutional is met with the simple answer that this is matter falling within the competence of States. However, one wonders whether or not this view will hold as more and more States embrace gay marriage. To import a concept from European Human Rights jurisprudence, as the variation in State practice diminishes and consensus increases, the “margin of appreciation” will correspondingly shrink, and faced with the logic of the majority’s reasoning on discrimination, what was once a State matter may become more of a Federal concern.

Effect on the UK

What does this mean for the United Kingdom? At first blush, perhaps not much. The emphasis on the importance of recognition and respect to be found in the majority opinion in United States v Windsor might have been used to argue that a separate Civil Union regime is discriminatory and thus in itself in contravention of Article 14 of the European Convention of Human Rights, but we are now well down the legislative path towards same-sex marriage. However, there may yet be difficult legal questions arising from the provisions of the Marriage (Same Sex Couples) Bill which provide that the duty of members of the Clergy of the Church of England to solemnize marriages in certain circumstances does not extend to same-sex couples. Could that be the UK equivalent of a Federal right or benefit which the US Supreme Court declared it would be discriminatory to deny?

The case may also have a wider resonance across Europe, particularly in relation to the jurisprudence of the ECHR. At present, Article 12 of the Convention, which protects the right of persons of marriageable age to marry in accordance with national laws, does not encompass the right of same-sex couples to marry. I suspect that the majority opinion in United States v Windsor, along with the judgement of District Judge Walker in the forerunner to Hollingsworth v Perry, although not binding in European jurisdictions, will be frequently cited in European Courts in the years ahead in support of arguments that Article 12, when read with Article 14 (prohibiting discrimination) does indeed guarantee a right to same-sex marriage.

The journey towards marriage equality for same-sex couples, in the United States and elsewhere, is far from over. However, these two decisions of the United States Supreme Court represent significant steps down the road, and furnish equality advocates with potentially powerful tools to assist in forging still further ahead.

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