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Prof. Redding on the Same-Sex Marriage Rulings | SLU LAW

Prof. Redding on the Same-Sex Marriage Rulings


On Wednesday, the last day of its 2013 session, the U.S. Supreme Court handed down opinions in two cases regarding same-sex marriage. In the first, United States v. Windsor, the court ruled that a section of the federal Defense of Marriage Act that defined marriage as between a man and a woman was unconstitutional. The second, Hollingsworth v. Perry, was over the constitutionality of California's same-sex marriage ban (Proposition 8). In that case, the court declined to rule on procedural grounds.

We asked Prof. Jeff Redding, a constitutional and family law expert, for his thoughts on the rulings:


Today’s two Supreme Court opinions on same-sex marriage are remarkable, perhaps primarily because in taking on and attempting to resolve some major legal questions, these two highly anticipated opinions leave so many legal issues unanswered and unsettled. I always tell people that if they want to (re)learn a lot about Civil Procedures, Conflicts, and Constitutional Law, then the ongoing same-sex marriage litigation controversies are a great place to explore all three areas of law simultaneously — and that of Family Law too.

In this sense, neither the case concerning DOMA nor the case concerning Proposition 8 disappoint; these are complex opinions that involve a lot of areas of law, but they both settle and unsettle this law at the same time. For example, after the first case, that of United States v. Windsor, we know that part of DOMA (Section 3) is unconstitutional but another part (Section 2) lives on. As a result, we also know that the federal government has to recognize same-sex marriages entered into in states which allow these types of marriages — Section 3 of the DOMA can no longer be used by the federal government to ignore those marriages — but we also know that other states which ban same-sex marriage do not have to do this kind of recognizing (per Section 2). Indeed, after the second case, that of Hollingsworth v. Perry, it is not even (yet) clear that marriage-recognition will extend across all of California.

Beyond doctrine, as well, there is a lot to learn about the intersection of law and politics in ongoing same-sex marriage litigation controversies, and today’s Supreme Court decisions provide very nice illustrations of the impact of politics on law, and law on politics. For example, looking at these two cases from a more macro-political perspective, it is hardly surprising that the Supreme Court, as a federal institution, felt more comfortable taking on other federal institutions — namely, the Congress and the Presidency — and federal laws (e.g. DOMA) than it did taking on states and their laws concerning “marriage.” On this note, it is again important to clarify the Supreme Court’s holdings in both cases. The first case, United States v. Windsor, only invalidated Section 3 of DOMA—the part of DOMA which instituted a federal definition of marriage —and did not (on its face) have anything to say about Section 2 of DOMA—the part of DOMA stating that states may refuse to recognize same-sex marriages entered into in other states. There will likely be future litigation concerning the constitutionality of Section 2 of DOMA but, for now, this part of DOMA is still valid law.

Furthermore, in the second case, Hollingsworth v. Perry, the Supreme Court itself did not invalidate California’s Proposition 8. Instead, the Court used a legal doctrine — whose implementation is always deeply political — concerning something called “standing” to avoid the Proposition 8 constitutionality question altogether. Indeed, the Supreme Court, in its opinion, told the 9th Circuit Court of Appeals (from which there was an appeal to the Supreme Court) that it too should have avoided the constitutional question as well, thereby vacating the 9th Circuit’s opinion. All that remains standing then, after today’s Hollingsworth v. Perry opinion, is a Northern District of California/San Francisco federal district court opinion that invalidated Proposition 8, citing the federal constitution.

While many commentators interpret the end result of the Supreme Court’s “standing” decision in Hollingsworth v. Perry to mean that in California — and only California — same-sex marriage is required under the federal constitution, there is likely to be further litigation concerning the exact reach of the San Francisco federal court’s opinion. Not only are there questions remaining about whether this federal district opinion’s force reaches beyond the federal Northern District of California and, most likely, the Counties of Alameda and Los Angeles, which are named defendants in this federal district court litigation, but there are also questions remaining as to whether parties other than the four named plaintiffs in this initial federal district court litigation can be beneficiaries of this federal district court’s holding invalidating Proposition 8. (More discussion of these issues can be obtained from the San Francisco City Attorney's Office.)

If there has been one maxim that has held true over the many years of the same-sex marriage debate, it is that nearly everything is unpredictable about the law of (same-sex) marriage. This is probably inevitable given the particularly heightened ways in which law and politics are intertwined in this debate, as well as the ways in which the marriage debate touches upon so many other unpredictable areas of law, including federalism/states’ rights and conflicts of laws.

This political situation is not necessarily something to be lamented. While political processes have led to things like DOMA and Prop 8, they have also brought same-sex marriage and civil unions to places like Minnesota and Illinois. Politics also lends vitality to ongoing debates about the wisdom of investing marriage with so many societal and economic privileges, many of which cost the state and are also regressive. On that note, let’s not forget that Edith Windsor challenged DOMA when she was hit with a $363,000 federal estate tax bill that only the very wealthy — those with “estates” in the first place — have to face. As well, while Justice Kennedy’s majority opinion in United States v. Windsor talks at length about the dignity and equality interests of same-sex married couples, he has nothing to offer to those who are uncoupled (by circumstance or choice). Indeed, after this opinion, one has to wonder about the equality and dignity interests of single persons — do they exist?  While these kinds of questions are ones that the social and economic elites who populate our federal judiciary often seem all too able to ignore, the political arena can often be one of much more contestation, vitality, and relevance.

Moreover, the political realm is very likely where all of this will ultimately be resolved, if it is ever resolved at all. While the Supreme Court seemed willing to nudge the same-sex marriage debate in a certain direction today, today’s decisions also absolutely make it clear that the Supreme Court is unwilling to get ahead of the public — or the states — on this issue. Indeed, it is possible that the Supreme Court may never issue an opinion announcing a constitutional right to same-sex marriage, in the same way that the Court avoided directly confronting the U.S. military’s anti-gay policies for decades. But, again, given how windy the road to these two opinions today has been, there are likely to be many more such twists and turns in the road — stretching many, many years into the future — ahead. As a result, we will all have to stay tuned!

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