U.S. Supreme Court Gay Rights Decisions Are Victory But Not in Texas

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The U.S. Supreme Court handed out two victories for gay rights, as it struck down Section 3 of the reviled Defense of Marriage Act (DOMA) and sent backers of California's Proposition 8 packing.  

The DOMA victory was woefully incomplete, and like yesterday's ruling on the Voting Rights Act (VRA), the scope of its effect is defined by the interplay of two separate sections of the law.  The decision is a victory for equal protection; it is also another step forward for federalism.  Between the deference to states' rights and roles shown in the DOMA opinion, and the narrow ruling in the California Prop 8 case, for now at least, the obvious result is that the benefits of yesterday's decisions depend heavily on the state in which a person lives.  

That is not good news for Texas. A brief analysis of Justice Kennedy's opinion shows why.  

To see why, read below the jump.  Until yesterday, Section 3 of DOMA set out a federal definition of marriage: “only a legal union between one man and one woman as hus¬band and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.”  The court ruled that this section was unconstitutional.  Section 2, however, which was not challenged, and which survives yesterday's opinion, leaves it to the individual states to decide whether or not to recognize same-sex marriage.  

Yesterday's ruling means that if a couple in a same-sex marriage lives in New York, for instance, a state which recognizes same-sex marriage, they are eligible to receive not only state-level benefits, but also federal-level benefits – think Social Security survivor benefits, federal employee retirement benefits, the marital deduction from the federal estate tax.  If a couple in a similar relationship lives in Texas, which does not recognize same-sex marriage, the federal government will not recognize them. In short, any interpretation of federal language concerning the definition of spouse or marriage must specifically refer to the laws of the state in which the person or the couple lives.  

Indeed, writing for the majority, Justice Anthony Kennedy wrote the following:

“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.”

“The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State.”

“By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.”

Kennedy did make equal protection arguments on behalf of striking down Section 3 of DOMA, and even referred to Texas in doing so:

“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, see Lawrence [v. Texas], 539 U. S. 558, 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.”

He also wrote about the financial harms, access to social security benefits, and problems applying for student loans, stemming from DOMA.  

However, he did not recognize in the Constitution an unequivocal right to marriage for same-sex couples.  He stopped short, writing that once a state has determined that persons may be married or belong to the class of married persons, all persons in that class must receive equal protections of the law.  Because DOMA served to undermine that, DOMA should be struck down.  Kennedy did not extend that same equal protection to persons whose right to marry has not yet been recognized by the states in which they live.

As a result, same-sex couples in Texas still cannot take advantage of the marital deduction for purposes of the federal estate tax, cannot receive survivor benefits for social security, and cannot enjoy the same protections from violence or domestic abuse that are part of federal law.  Further, same-sex couples who relocate to Texas from states such as New York will reside in a legal grey area in everything from spousal hospital visits to division of property in a divorce (how can you divorce if the court can't accept that you've ever been married?)  

Kennedy's ruling seems confusing for several reasons, not least of which is the reference to and reliance on Loving v. Virginia, 338 U.S. 1 (1967). Much of Kennedy's opinion rests on the premise that regulation of marriage is the province of the states.  However, Loving is the seminal U.S. Supreme Court case which struck down state-level anti-miscegenation laws once and for all.  Moreover, as he condemned DOMA, Kennedy wrote that DOMA imposed a disadvantage, a separate status, and a stigma on same-sex couples.  He further disapproved of two contradictory marriage regimes within a single state.  

Yesterday's opinion is a victory for much of the rest of the country.  For Texas, however, there is still a long road ahead.  

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