United States v. Windsor and interstate marriage recognition.

• Author: Strasser, Mark P.
• Position: Symposium on LGBT Rights

1. INTRODUCTION

   In 2013, the United States Supreme Court struck down section three of the Defense of Marriage Act (DOMA) in United States v. Windsor. (1) Since then, plaintiffs have filed challenges to state same-sex marriage bans across the country. Some have focused on the state's refusal to recognize a marriage validly celebrated elsewhere, whereas others have challenged the state's ban on such marriages as a general matter. Several federal courts have held that the refusal to recognize same-sex marriage violates constitutional guarantees, although they have offered different reasons as to why the state statute at issue does not pass muster. (2)

   A court might be more willing to strike down a refusal to recognize same-sex marriages celebrated elsewhere than require the state to permit such marriages to be celebrated locally because such a holding is less robust. A ruling that that the state's same-sex marriage ban violates constitutional guarantees would entail that the state could not refuse to recognize a same-sex marriage validly celebrated in another state, (3) whereas a ruling that a marriage validly celebrated elsewhere must be recognized would not in addition require the state to permit such marriages to be celebrated locally. Precisely because there are reasons militating against refusing to recognize a marriage already celebrated that are inapplicable if the marriage has not already occurred, courts might be willing to strike down state refusals to recognize already existing marriages, even if not yet willing to strike down same-sex marriage bans more generally. (4)

   Part II of this article discusses Windsor, focusing on some of the arguments that have implications for state marriage regulations. Part III explains the traditional approach to the interstate recognition of marriages and then analyzes whether Windsor should be understood to modify that approach. The article concludes that while Windsor is open to a variety of interpretations, the decision makes state laws exclusively targeting same-sex unions for non-recognition especially vulnerable to constitutional challenge.

2. WINDSOR AND ITS IMPLICATIONS

   When striking down section three of DOMA, the Windsor Court offered numerous rationales to support its holding. Some spoke to why Congress was overstepping constitutional bounds when passing section three of DOMA. Other rationales had import for the states, either for their refusal to recognize same-sex marriages validly celebrated elsewhere or for the states' refusals to permit same-sex marriages to be celebrated locally. While one cannot be sure how the Court will rule when deciding the constitutionality of same-sex marriage bans, one can be confident that certain kinds of state statutes will be even more at risk than others.

   1. UNITED STATES V. WINDSOR

      In Windsor, the Supreme Court of the United States addressed the constitutionality of section three of DOMA, which reads:

      In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife. (5) Because of this section, an individual who married his or her same-sex partner in their domicile in accord with local law would be legally married for state but not for federal purposes. (6) The Federal Government's refusal to recognize such a union imposed a substantial burden on same-sex couples who were married according to their domicile's law. The Court pointed to "the whole of DOMA's sweep involving over 1,000 federal statutes and a myriad of federal regulations." (7) Thus, DOMA's denial of recognition imposed a wide range of tangible costs on same-sex couples, (8) although the denial of marriage recognition was detrimental symbolically as well. For example, "DOMA ... tells those couples [who have celebrated same-sex marriages], and all the world, that their otherwise valid marriages are unworthy of federal recognition." (9) Such a message communicates that the couple has "a second-tier marriage," a message that not only "demeans the couple," but "humiliates tens of thousands of children now being raised by same-sex couples." (10)

      Admittedly, what was at issue in Windsor is not the same as what is at issue when states refuse to recognize marriages validly celebrated in other states. DOMA was a federal statute that "reject[ed] the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State." (11) Thus, it is fair to suggest that the Court's striking down a federal statute defining marriage need not have implications for state statutes defining marriage. If the Court were merely striking down DOMA because it did not respect the federal-state balance, (12) then the opinion would either seem irrelevant to interstate recognition issues or, perhaps, might be thought to support the power of a state to decide which marriages it wished to recognize. (13) Some of the Windsor opinion incorporates federalism elements into its analysis. (14) Yet, it is mistaken to understand the case as basically about federalism, both because the Court expressly declined to base its holding on those concerns (15) and because the Court instead held that DOMA violates Fifth Amendment guarantees. (16)

      Some of the Court's analysis regarding why DOMA failed to pass muster involved due process considerations. For example, the Court talked about why marriage itself is important, describing it as "more than a routine classification for purposes of certain statutory benefits." (17) The Court cited Lawrence v. Texas (18) for the proposition that "[p]rivate, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form 'but one element in a personal bond that is more enduring.'" (19) Further, Lawrence was decided on due process grounds (20) rather than equal protection grounds. (21) Finally, the Windsor Court announced that "DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution." (22) All of these reasons suggested that the federal statute was burdening an important interest, and both the Fourth and Tenth Circuits have suggested that state same-sex marriage bans are unconstitutional because they abridge the fundamental right to marry without sufficient justification. (23)

      Yet, Windsor also incorporated elements of equal protection analysis in its explanation of why this DOMA section failed to pass muster, and the Court expressly noted that the Fifth Amendment has an equal protection component. (24) The Court explained that DOMA was passed out of animus toward a particular class, (25) because the section's "principal effect [wa]s to identify a subset of state-sanctioned marriages and make them unequal." (26) While the Court never articulated the level of scrutiny being employed, (27) it cited some of the rational basis "with bite" cases (28) and certainly was not using deferential rational basis scrutiny when striking down section three. (29) In any event, after citing some of the factors that would be included in an interest analysis (30) and also citing some of the factors that would be included in a class analysis, (31) the Court struck down DOMA as a violation of both due process and equal protection guarantees. (32)

   2. WHAT DOES WINDSOR MEAN?

      Windsor can be interpreted in a variety of ways. (33) For example, the decision suggests that one of DOMA's failings was in Congress's failing to give state decision making its due. (34) The difficulty posed by such a failure might be explained in terms of Congress having upset the normal balance between the state and federal governments, i.e., federalism concerns. (35) In addition, Congress's anomalous rejection of the traditional deferential approach to state decisions about marriage, when the marriage rights of one particular group were at issue, might be thought the basis for an inference of animus. (36) Indeed, the Court cited language from the House of Representatives' Report in support of the conclusion that DOMA's passage was improperly motivated. (37)

      The Windsor Court sent mixed signals in a number of respects when offering its analysis of the constitutionality of section three. For example, the Court sometimes emphasized the state's power to control an important relationship, explaining that the "recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens." (38) Further, the marriage relationship provides the basis for a variety of other rights and responsibilities related to the family, including "the '[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.'" (39) That said, the Court was not simply offering an encomium to the state's sovereign authority over marriage, since the Court pointed out in several places that the state power to define marriage is limited by federal constitutional guarantees. State marriage regulations "must respect the constitutional rights of persons," (40) although states have broad power as long as they act within constitutional limits--the '"regulation of domestic relations' is 'an area that has long been regarded as a virtually exclusive province of the States.'" (41)

      It might seem that the Court was basically suggesting the following: the Constitution imposes some limitations on the states with respect to their power to regulate marriage. However, as long as the states act within those broad parameters, they have plenary authority with respect to marriage regulation, and the Federal Government must defer to the state's decisions about who could marry whom. Yet, even that qualified reading of state power over...