xA0xA0xA0xA0xA0xA0xA0xA0xA0This term offers a fascinating group of cases. The Court’s recent term considers questions such as: Who can be a family? When can a family be separated? Who gets the kids? Are all the States part of the family known as the United States? Maybe the entire country is like one big dysfunctional family? Most importantly, the most dysfunctional family in the country may be the Supreme Court itself! After this term, we all may need a dose of therapy: less counsel and more counseling …
xA0xA0xA0xA0xA0xA0xA0xA0xA0Love and marriage
xA0xA0xA0xA0xA0xA0xA0xA0xA0What would the Founders say? There is no doubt that the most important cases this term are United States v. Windsor and Hollingsworth v. Perry.1 The Court finally reached the same-sex marriage issue . . . well . . . sort of. For same-sex couples, “love and marriage” don’t quite “go together like a horse and carriage” just yet.2
xA0xA0xA0xA0xA0xA0xA0xA0xA0In Windsor, the Court held the Defense of Marriage Act (DOMA) to be unconstitutional. Justice Kennedy, writing for the majority, noted that it is the states, not the federal government, that have the primary authority to define marriage.
The definition of marriage is the foundation of the State's broader authority to regulate the subject of domestic relations with respect to the “[p]r1otection of offspring, property interests, and the enforcement of marital responsibilities.” [Williams v. North Carolina, 317 U.S. 287, 298 (1942).] “[T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce ... [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.” Haddock v. Haddock, 201 U.S. 562, 575 (1906). . . . The significance of state responsibilities for the definition and regulation of marriage dates to the Nation's beginning; for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States.” Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383-84 (1930).3
xA0xA0xA0xA0xA0xA0xA0xA0xA0It is against this background that the Court holds DOMA to be a violation of equal protection. If the states have the primary authority over marriage and family, how can the federal government act contrary to a lawful state decision regarding who is properly married? The short answer is that the federal government may not constitutionally contravene a lawful exercise of state power.
DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. . . . The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State's classifications have in the daily lives and customs of its people. DOMA's unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. The history of DOMA's enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.4
xA0xA0xA0xA0xA0xA0xA0xA0xA0However, the crux and possible future impact of Windsor is brought to the fore in Chief Justice Roberts’ and Justice Scalia’s respective dissents. Regarding the merits, the Chief Justice nicely summarizes both Scalia’s and his own reasons for dissenting.
But while I disagree with the result to which the majority's analysis leads it in this case, I think it more important to point out that its analysis leads no further. The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their “historic and essential authority to define the marital relation, ” ante, at 2692, may continue to utilize the traditional definition of marriage.
xA0xA0xA0xA0xA0xA0xA0xA0xA0The majority goes out of its way to make this explicit in the penultimate sentence of its opinion. It states that “[t]his opinion and its holding are confined to those lawful marriages, ” ante, at 2696 —referring to same-sex marriages that a State has already recognized as a result of the local “community's considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.” Ante, at 2681. Justice Scalia believes this is a “bald, unreasoned disclaime[r].” Post, at 2709. In my view, though, the disclaimer is a logical and necessary consequence of the argument the majority has chosen to adopt. The dominant theme of the majority opinion is that the Federal Government's intrusion into an area “central to state domestic relations law applicable to its residents and citizens” is sufficiently “unusual” to set off alarm bells. Ante, at 2690, 2692. I think the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism.5
xA0xA0xA0xA0xA0xA0xA0xA0xA0This is where we are left with Windsor. If Windsor is truly a federalism decision, then arguably the ultimate issue of same-sex marriage is one for the states and the states alone. The Court has no power to force states to accept same-sex, plural or any other definition of marriage other than one states decide upon. Under a federalism analysis, once the state declares a particular marriage—same-sex, plural or otherwise—to be “lawful, ” the federal government may not discriminate against that “marriage.” However, if Justice Scalia is right, then buried—not so deeply—in Windsor is the basis for a substantive due process right to require all states to accept same-sex marriage. The Court stopped short of such a holding. At the moment, the defenders of traditional marriage can breathe a bit easier and stand firm on federalism. For many same-sex couples in states that ban such marriages, almost is a terrible disappointment, but there’s always next term.
xA0xA0xA0xA0xA0xA0xA0xA0xA0Hollingsworth v. Perry is another constitutional almost, a 5-4 decision. The case concerned California’s Proposition 8, defining marriage as between a man and a woman. In an opinion by the Chief Justice, the Court found that it lacked jurisdiction to hear the case and that the parties did not have standing. This is the other story of Windsor and Hollingsworth: jurisdiction and standing. I have quite consciously focused on the merits of Windsor for purposes of this article for two reasons: First, it’s far more interesting. Second, I am not sure what the Court’s rules on jurisdiction are. There are at least three takes on jurisdiction in Windsor/Hollingsworth: (1) Justice Kennedy’s position in his majority opinion in Windsor and his dissent in Hollingsworth; (2) Chief Justice Roberts’ dissent in Windsor and his majority opinion in Hollingsworth; and (3) lastly, there is Justice Alito. Honestly, the Court has been in existence for well over 200 years. One would think they’d have this down by now. I say this only partly tongue-in-cheek. I realize issues of jurisdiction will always be with us, but the situation here surely borders on the absurd. I leave this Gordian Knot for someone else to cut.
xA0xA0xA0xA0xA0xA0xA0xA0xA0For good or for ill, the Court seems poised to jump or fall into the abyss of defining what is a “family.” Whatever your view of same-sex marriage, if the Court jumps or falls in many issues will suddenly have constitutional significance: plural marriage, as well as the terms and qualifications for child custody, divorce and adoption. The list goes on. Family law practitioners should start brushing up on their constitutional...