Good afternoon. This blog post is several months late but here it is. On Wednesday, June 26th of this year, the Supreme Court ruled on two important cases regarding same-sex marriage: United States v. Windsor and Hollingsworth v. Perry. Regarding Windsor, the Court made the monumental decision to rule Section 3 of the Defense of Marriage Act (DOMA) unconstitutional. In Hollingsworth, the Court decided that it lacked standing. Because of this, the California District Court's decision regarding Proposition 8, is still the valid state of law.
United States v. Windsor
Let me start by examining the federal matter. Edith Windsor was married to Thea Spyer in 2007. When Thea passed away, she and Edith had been together for over 40 years. This article shows some of the photos of the loving couple. I have so much to say here that I cannot go into the details I have read about this relationship but the point is that they had a good, long life together filled with love. Windsor, who inherited her wife's estate, was required to pay $363,000 in federal estate taxes which she would not have had to pay had she been in a heterosexual marriage, thereby qualifying her for an unlimited spousal deduction. The Supreme Court, in a 5-4 ruling with Kennedy, Ginsburg, Breyer, Kagan and Sotomayor in the majority, ruled that Section 3 of DOMA (Defense of Marriage Act) is unconstitutional as a deprivation of the equal liberty of people that is protected by the Fifth Amendment. DOMA's reach was quite vast and extended even over those states which passed laws clearly seeking to protect same-sex marriage. The deviation from recognizing state applications of marriage was disconcerting to the justices. Justice Ginsburg had previously stated that DOMA was setting up same-sex marriage as the "skim milk" of unions - a point which Justice Kennedy furthered while issuing the opinion of the court: "DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity." To set up a marriage disparity is troubling, at best. Imagine the impact that this has not only on the couples, but on the children upon realizing that their parents are not being given the same rights.
Chief Justice Roberts dissented saying, "At least without some more convincing evidence that the Act's principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry." This statement, though very flowery, is extremely naive. As Justice Kagan highlighted during oral arguments, "Congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality." That was clearly the reasoning behind the Defense of Marriage Act - heck, even its very name shows that Congress was trying to protect traditional marriage, thereby targeting those in same-sex relationships. As Kagan so eloquently stated, "When Congress targets a group that is not everybody’s favorite group in the world, that we look at those cases — even if they’re not suspect — with some rigor to say: Do we really think that Congress was doing this for uniformity reasons, or do we think that Congress’ judgment was infected by dislike, by fear, by animus?" Though Chief Justice Roberts may be reluctant to say that Congress acted in a bigoted manner when it passed DOMA, I have no such qualms. I am very pleased that this unjust law has been seen for what it truly is.
Hollingsworth v. Perry
California has been a battleground regarding same-sex marriage starting back in 2000, as evidenced by this timeline. Hollingsworth v. Perry was particularly interesting because sponsors of Prop 8 were the ones to bring the case before the Supreme Court. Based on this and the fact that public officials refused to challenge the District Court's ruling (which had also been upheld by the Ninth Circuit Court of Appeals). The District Court had ruled that Prop 8 violated the due process and equal protection clauses of the Fourteenth Amendment because there was no rational basis for denying same-sex couples marriage licenses.
Explanation of Different Type of Judicial Review for Due Process or Equal Protection Cases:
Rational basis review - The law needs to be "rationally related" to a "legitimate" governmental interest. Of all judicial review, this is the most lenient and will allow for the lawmaker to get away with more.
Intermediate scrutiny - The law must further an "important" government interest by means that are "substantially related" to that interest. This level of scrutiny is typically used in quasi-suspect classifications, such as gender.
Strict scrutiny - The law must be justified by a "compelling" governmental interest and must be "narrowly tailored" to achieve that interest. In these types of cases the court will also examine whether there are less restrictive means of accomplishing the same thing. This level of scrutiny applies for suspect classifications such as race, national origin, religion, alienage and poverty.
You may wonder why I am going into detail regarding the different types of judicial review for this case. It is because the LGBT community does not get the benefit of being treated as either a suspect or quasi-suspect class, despite all the hate crimes and discrimination this group has endured. Although I knew the Court was likely to decide this matter on standing, as it did, I had truly hoped that the Supreme Court would tackle this issue and uphold the District Court's ruling. In my utopia, the Court would have written an opinion about the rational basis review, perhaps granting the LGBT community a greater protected status. I still hope that that day will come soon. For now, I am content that same-sex couples have resumed marrying in the state of California.
Religious Analysis
Ok so this is a religion blog, right? So here comes the religiously relevant portion. First, let me take the time to emphasize the fact that there are religious folk on both sides of the same-sex marriage argument. There are those of us who support it and there are others who do not. It is important to see religious people as the diverse group that we actually are.
First let me turn towards those who supported the Court's decision. A few days after the decision, the National Cathedral rang its bells in celebration for the Supreme Court's rulings.
Now for the other side. One writer in the American Spectator discussed how Galen Carey, D.C. representative of the National Association of Evangelicals, was upset that the Supreme Court did not uphold "marriage and democracy". My reaction to this is that 1) Windsor was not even about upholding marriage but rather about extending federal benefits to those who were already married in states which allow gay marriage. Isn't that all about the democratic process? Wouldn't refusing to acknowledge a marriage which was voted for and allowed by a state be snubbing democracy? My question is when did marriage and the government become so intrinsically linked?
As the writer in the American Spectator wrote, "They instinctively understand with Cardinal Dolan that the 'common good of all, especially our children, depends upon a society that strives to uphold the truth of marriage.'" What "common good" is this of which he speaks? Are we going to get into heaven quicker if we prevent same-sex marriages? How does this benefit children, in the slightest, especially the children of same-sex couples? If anything, they will be hurt by being relegated to some second-class citizen status which comes from their parents' marriage not given equal status. If the argument is being made that same-sex couples who adopt, will be hurting their children because kids need the parenting from a man and a woman, there is no evidence of this, regardless of whatever incorrect things Scalia chooses to say. Same-sex couples are going to continue being attracted to their partners. These same-sex relationships are not going to go away and the couples will continue creating families regardless of whether every church tries to stop their marriage or not. Trying to prevent couples from marrying and those who are already married from obtaining benefits is completely pointless and bigoted. You don't have to agree with it, but please do not discriminate against another group. I would have hoped that we as a society would have evolved passed such pettiness.
I mean, what's the point? As I've said before, same sex couples are going to be attracted to the same sex and are going to continue being in relationships with members of the same sex and are going to create families regardless of whether others are trying to stop them from marrying. To deny them marriage is to say you do not believe in the equal treatment of others, that you are part of a privileged group and you wish to keep others out of it, that you do not care that other states have voted to allow same-sex marriage - that you want to deny them any useful, federal fairness and fly in the face of everything that is just. Just to give some clarification on the matter, here is a chart to show you what has changed along with this wonderfully cheeky list and this. As you can see, nothing has changed on a state-by-state basis. The federal law merely has to reflect the state's choice. There is no good reason to deny federal marriage benefits to couples whose union has been acknowledged by their state. The only reason to do this is discrimination. Georget Takei discussed the "ick" factor that exists in society around same-sex couples which has led to said discrimination. Much as Dennis the Peasant tells King Arthur in Monty Python and the Holy Grail that, "strange women lying in ponds distributing swords is no basis for a system of government", Takei stated that "'ick' is not a proper basis for constitutional jurisprudence." I believe that "ick" is no basis for denying love between two people. I am so tired of the discrepancies in the thought process of certain religious people: marriage has to be the ultimate goal between two people who love each other - except if they are of the same sex in which case we must do everything possible to prevent that from occurring. How does that make sense?
So many happy, loving couples have gained great benefit from these decisions. Think of the couple who were together for 19 years. They were married but one of the men was going to be deported back to Australia because of DOMA - which was preventing his husband from obtaining a visa for him. Even though he was not deported at the end of the day, the fact remains that there were many same-sex couples out there who could not keep their spouse in the country because the federal government did not acknowledge such marriages.
In the DOMA decision, the Chief Justice found it necessary to point out that the Court did not decide on whether states could continue to use the traditional definition of marriage but rather just made this applicable for those marriages which have already been legally recognized by the state. Clearly this is a matter left for another day but I look forward to a time when we can tackle this conversation with open minds and open hearts .
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