Windsor and its progeny.

• Author: Strasser, Mark P.
• Position: Brigham Young University Symposium on the Future of Families and of Family Law

1. INTRODUCTION

   Following Windsor v. United States, (1) plaintiffs across the country challenged state same-sex marriage bans. To date, several district courts have struck down either state refusals to recognize same-sex marriages validly celebrated in other states or state refusals to permit such marriages to be celebrated locally, and several circuits have issued opinions on the constitutionality of same-sex marriage bans, all but one of which holding that such bans violate federal constitutional guarantees. (2) Other circuits will be considering challenges in the coming months.

   Whether because of the importance of the issue or because of a split in the circuits, the United States Supreme Court has granted certiorari to decide whether the United States Constitution protects the right to marry a same-sex partner. (3) While it seems safe to assume that some of the Justices will answer in the affirmative and others will not, one cannot be certain about how many will vote to affirm that the Federal Constitution protects the right of same-sex couples to marry. Nonetheless, it is assumed here that the Court will hold that the right to marry a same-sex partner is protected, and this article will address the changes, if any, that might be expected in family law were such a ruling to be issued.

   Part II of this article discusses Windsor as well as the decisions issued by the Fourth and Tenth Circuits. Part III discusses what the hypothesized decision would likely say, and the kinds of changes that such a decision is likely to cause. The article concludes that were the Court to hold that the right to marry is protected under the federal Constitution, the likely effects on family law in particular are relatively minor and the likely effects on particular families will be quite positive.

2. THE EVOLVING RIGHT TO MARRY

   In United States v. Windsor, the United States Supreme Court struck down section three of the Defense of Marriage Act (DOMA). (4) Since that decision was issued, several courts have addressed the constitutionality of same-sex marriage bans, sometimes specifically striking down the refusal to recognize such marriages when validly celebrated elsewhere and sometimes striking down the state's ban more generally. It seems likely that the United States Supreme Court will address the constitutionality of same-sex marriage bans on the merits, and Windsor and these circuit cases give some clues about what such a decision might say.

   1. Windsor

      The Windsor Court offered several reasons to justify its holding that the DOMA section at issue violated federal constitutional guarantees. Some of those reasons would also undermine the power of a state to refuse to recognize same-sex marriages, while others would not. Precisely because of the numerous reasons offered in support of DOMA's unconstitutionality, federal district and circuit court judges have come to very different conclusions about whether and why same-sex marriage bans violate constitutional guarantees.

      Section three of the DOMA 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) The Windsor Court noted that "[b]y history and tradition the definition and regulation of marriage ... has been treated as being within the authority and realm of the separate States." (6) However, Windsor should not be understood as merely underscoring the power of the states to regulate domestic relations as they see fit. The Court explained that Congress is authorized by the Constitution to supplant state law in certain instances: "Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges." (7) For example, the Court recently "upheld the authority of the Congress to preempt state laws, allowing a former spouse to retain life insurance proceeds under a federal program that gave her priority, because of formal beneficiary designation rules, over the wife by a second marriage who survived the husband." (8) An additional reason that the decision should not be understood as underscoring the state's plenary power to define marriage is that the Court expressly noted that "State laws defining and regulating marriage ... must respect the constitutional rights of persons." (9)

      The plaintiffs in this case, Edith Windsor and Thea Spyer, had "married in a lawful ceremony in Ontario, Canada." (10) Their domicile, New York, recognized the marriage. (11) But the federal government did not recognize the marriage because of DOMA, which meant that a whole host of federal benefits associated with marriage were not accorded to Windsor and Spyer. The Court noted that DOMA's "comprehensive definition of marriage for purposes of all federal statutes and other regulations or directives covered by its terms ... does control over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law." (12) Thus, in enacting DOMA, Congress targeted a specific group and denied them a wide range of benefits to which they would otherwise be entitled.

      DOMA undermined "the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State." (13) While such language might be construed as suggesting that Congress when passing DOMA overstepped the federalism limitations imposed by the Constitution, the Court expressly disavowed that federalism was the basis upon which the opinion was being decided: "it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance." (14) Instead, the Court explained that "DOMA seeks to injure the very class New York seeks to protect .... [and] [b]y doing so it violates basic due process and equal protection principles applicable to the Federal Government." (15)

      Equality guarantees were implicated because "DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal." (16) One of the difficulties caused by this second-class status was that it made individuals married for certain purposes but not for others. "By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law ...," (17) An effect of such a refusal was to "diminish[] the stability and predictability of basic personal relations." (18) The message sent by the refusal to recognize such unions is clear: "DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition." (19) Same-sex couples are thereby stigmatized: "[t]he differentiation demeans the couple, whose moral and sexual choices the Constitution protects." (20) In addition, the lack of recognition "humiliates tens of thousands of children now being raised by same-sex couples," (21) and "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." (22)

      The Windsor Court explained that although "Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment." (23) Because it violated the Fifth Amendment's guarantees, the Court struck down the challenged DOMA section. (24)

      Lest one think that the decision had no implications for the states, the Court went out of its way to warn that "[w]hile the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the Equal Protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved." (25) If the Fourteenth Amendment Equal Protection guarantees are informing the analysis of the Fifth Amendment protections, then the Fifth Amendment's precluding the Congress from passing a law whose "purpose and effect [were] to disparage and to injure" (26) might mean that the Fourteenth Amendment will similarly be interpreted to prevent states from enacting laws whose "purpose[s] and effect[s] [are] to disparage and to injure." (27)

      Marriage confers a variety of benefits under state law. (28) Same-sex couples are being denied a whole host of benefits by virtue of state refusals to recognize marriages validly celebrated elsewhere or by virtue of their refusal to permit those marriages to be celebrated locally. While that fact does not end the inquiry with respect to whether such bans are constitutionally permissible, it will certainly be a factor to be considered. Just as the denial of marriage recognition by the federal government might be thought stigmatizing, the state refusal to afford such recognition might be thought stigmatizing as well. (29) Just as children being raised by same-sex couples might be harmed in tangible and non-tangible ways by the federal government's refusal to recognize same-sex marriage, such children might be harmed in similar ways by state refusals to recognize such marriages. In short, Windsor provides several arguments that would also seem applicable to the states. While the Windsor Court did not hold state same-sex marriage bans unconstitutional, it is not plausible to suggest that the decision supports the constitutionality of such bans, claims of one member of the United States Supreme Court to the contrary notwithstanding. (30)

   2. The Circuit Decisions

      Both the Fourth and Tenth...