Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Same-Sex Marriage and the Continuing Conversation (2)

Julia K. Stronks


July 5, 2013

By Julia K. Stronks

This is the second article in a two-part series.

On June 26th, the Supreme Court handed down two highly anticipated same-sex marriage rulings.  While the decisions were fascinating, they did not really offer much guidance on how to think through disagreements related to marriage law.

In Hollingsworth v Perry, the Court was asked to rule on the constitutionality of California’s Proposition 8.  In 2008, the California Supreme Court had said that limiting marriage to heterosexual couples was a violation of the equal protection clause of the state constitution.  After that ruling, California voters passed Prop 8 amending the California constitution so that the only marriage recognized by the state would be that between one man and one woman. In response, two same-sex couples brought a lawsuit in federal court saying that Prop 8 violated both the due process and equal protection clauses of the United States Constitution.

Those who supported Prop 8 said the issue was whether a state could choose to define marriage as between one male and one female. The lower federal courts, however, said that the real issue was whether a state constitution could be amended in order to take away a right that had been already recognized. The lower court concluded that targeting gay people in this way was not constitutional. 

When the case was appealed to the Supreme Court, the California elected officials who had lost declined to participate in the appeal.  They accepted the federal court decision. The group that brought the case was the group that had crafted Prop 8; they were asking the Court to overturn the lower court decision. 

The Supreme Court could have said the lower courts were wrong in declaring Prop 8 unconstitutional; on the other hand, it could also have said all state constitutions that had been amended to define marriage between male and female were unconstitutional.  What the Court actually did was to avoid the issue.  The Court said those bringing the appeal did not have “standing.” Though the people who crafted Prop 8 cared about the issue, they were not directly impacted by it, so the Supreme Court would not answer the question.

Standing is one of several mechanisms that judges use to determine whether or not they should take a case or render a decision on a case they have already accepted.  It requires that the party bringing the case be directly harmed by or connected to the act that the court is asked to rule on.  As the Court put it, the litigants must have suffered a “personal and tangible” harm. In Hollingsworth, the fact that Prop 8 had been ruled unconstitutional might have irritated those who crafted it, but it did not have a sufficiently direct impact on them. 

In U.S. v Windsor, the Court ruled part of the federal Defense of Marriage Act unconstitutional.  The state of New York recognizes same sex marriage.  But DOMA defines marriage as between one woman and one man for federal purposes no matter what a state does. This meant that married gay couples in New York could not claim to be married for federal tax and inheritance laws. When one partner in a gay couple died and left a great deal of money to her partner, the federal government did not allow that partner to claim the federal estate tax exemption for surviving spouses.  So, she brought a lawsuit saying that DOMA violated the United States Constitution. 

The Supreme Court agreed.  Using concepts of federalism and due process, the Court emphasized that marriage has always been the business of states, not the federal government.  And, if a state had already chosen to recognize a particular type of marriage, the federal government could not target some married couples from that state, denying them federal benefits.  The main issue in Windsor parallels the issue that the lower federal court framed in Hollingsworth.  Once a state constitution or state legislation has recognized marriage for all persons, later amendments or other laws may not then treat same-sex couples differently from heterosexual couples.

From a public justice perspective, these cases can be assessed in two different ways.  Some will say that the cases emphasize what it means to do justice to same-sex couples, both in terms of legal recognition of their unions and in terms of protecting them from being targeted after they have secured certain rights.  Others, however, will say that the cases failed to highlight the distinctiveness of marriage as an institution created by God.  There is merit to both perspectives.  This demonstrates that we have to think through two different things.  First, we have to think about what it means to recognize a differentiation of institutions.  Second, we have to consider what it means to do justice to different worldviews in understanding what the responsibilities of those institutions are.

There are decades of debate ahead of us. Thirty-seven states do not recognize same-sex marriage, and in those that do, it is unclear how governments will balance the rights of gay couples with the rights of other institutions like non-profits, churches, or schools that believe marriage is between a male and female. We have much work to do.

- Julia K. Stronks has practiced law and has a Ph.D. in political science.  She holds the Edward B. Lindaman Chair at Whitworth University in Spokane, Washington.

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”