07/06/2012 09:23 pm ET Updated Feb 02, 2016

Supreme Timing: Why It's Better for the Supreme Court to Hear the DOMA Case Before the Prop 8 Case (Part 4)

This is the fourth piece in a five-part series exploring the future of the DOMA and Prop 8 cases at the Supreme Court. Read Part 1 here, Part 2 here, and Part 3 here.

In Part 3 of this series, I wrote about the different effects that a Supreme Court decision striking down DOMA would have on the status quo of American marital law as compared with a decision striking down Prop 8. In that post I argued that because DOMA upended the previous status quo and inserted the federal government into marriage law, which has traditionally been the jurisdiction of state governments, a Supreme Court ruling striking down DOMA would show judicial restraint, allowing the states to fully function as "laboratories of democracy" and provide full marriage rights to gay couples if they wanted to.

I also argued that a decision striking down Prop 8, on the other hand, even if it followed the Ninth Circuit's narrow ruling limiting the effect of the decision to California only, would involve the Court's wading in to the unprecedented territory of whether state electorates can use popular votes to take away rights from a specific class of citizens. Because of this, I wrote that it would be best for the Supreme Court to consider DOMA and strike it down while declining any review of Prop 8, allowing the Ninth Circuit's decision to bring marriage equality back to California while giving the narrowest possible effect in the country at large.

At first glance, this may seem like a frustrating outcome for marriage-equality advocates, and it is admittedly a more limited outcome than many of us would desire. But as I wrote earlier, it seems unlikely that the current Supreme Court, given its makeup, would be ready, in 2012 or 2013, to make a broad 14th Amendment case for marriage equality and strike down over 30 marriage bans on the books across the U.S.

A Prop 8 ruling limited to California would be a major victory, restoring marriage equality to the largest state in the union. But even more importantly, a decision striking down DOMA could end up setting the groundwork for successful marriage-equality litigation in the future. Today I will make the argument for why a Supreme Court decision striking down DOMA could change our movement's entire strategy going forward.

Marriage Equality's History in California: A lesson in 'Separate but Equal'

On the surface, the immediate effects of a decision declaring DOMA unconstitutional are apparent: Duly married gay and lesbian couples would no longer be discriminated against by the federal government and would have equal protection under the law in terms of tax treatment, immigration decisions, government benefits, and more. These changes would all take effect, essentially, on day one, although it would of course involve significant changes in how the federal government treats married gay couples.

But there is another element of a DOMA decision that is often underappreciated: It could very well change the legal landscape and allow for more successful litigation in the future against marriage-equality bans, including Proposition 8. Although this element of a DOMA decision is often overlooked, the end of DOMA would have a major impact on civil-unions law. In making this argument I want to look specifically at the progression of marriage equality in California, although these arguments could be extrapolated (with some modification, of course) to apply to the other states' unique legal landscapes.

Marriage equality came to California through a California Supreme Court case called In re Marriage Cases. Before the decision, California offered gay and lesbian couples in the state the ability to enter into domestic partnerships, which provided all the legal rights and responsibilities under state law provided to married couples, but withheld the official classification of "marriage" from same-sex couples because of Proposition 22, a 2000 statute limiting marriage in the state to heterosexual couples. The In re Marriage Cases decision held that even withholding just the name of "marriage" was an equal-protection violation under the California constitution, because it denigrated same-sex couples' relationships to a status lesser than that of heterosexual couples. So, for a few months in 2008, gay couples could marry in California.

Of course, the California Supreme Court's decision was effectively overruled by Proposition 8, which amended the California constitution to ban marriage equality. When Proposition 8 was challenged in California court, the state's Supreme Court issued a somewhat messy decision in the case of Strauss v. Horton, which upheld Prop 8 but also ruled that the 18,000 same-sex marriages that had been officiated since the In re Marriage Cases decision remained valid.

In its decision the California Supreme Court wrote:

Proposition 8 does not abrogate any of these state constitutional rights [to privacy and equal protection guarantees], but instead carves out a narrow exception applicable only to access to the designation of the term "marriage," but not to any other of "the core set of basic substantive legal rights and attributes traditionally associated with marriage." [Emphasis and bracketed inclusions mine]

How Civil Unions Will Be Different in a Post-DOMA America

The California Supreme Court's decision, while based on a somewhat tenuous legal distinction, was facially true in 2009 and remains so today: Prop 8 only affected gay couples' access to the term "marriage," not to any of the legal rights that heterosexual married couples enjoy. In a post-DOMA world, however, this would no longer be the case, and, by extension, the California Supreme Court's logic would fail. In making this argument, I have to take a step backwards in time before I move forwards.

In 1996, when the Defense of Marriage Act was passed by Congress, no state afforded legal relationship recognition to gay and lesbian couples, let alone marriage rights. (Although some cities, such as San Francisco, Berkeley, and West Hollywood, offered some domestic partnership options in the 1980s and 1990s, it wasn't until 1999, after the enactment of DOMA, that California became the first state to legally recognize same-sex couples.) That means that all of the domestic-partnership, civil-union, and marriage gains made across the country in the last 13 years have by default only pertained to rights under state law, because DOMA precluded any discussion or conferral of federal rights.

If DOMA is struck down, or repealed via Congressional action, a gay couple living in California that had entered into a pre-Prop-8 marriage would be afforded the federal legal rights of marriage, whereas a California couple entering into a domestic partnership would be afforded all the state rights of a married couple but not the federal rights. The California Supreme Court's decision that Prop 8 had no effect on "'the core set of basic substantive legal rights and attributes traditionally associated with marriage" would no longer be true, because couples in marriages would be treated differently from otherwise identical couples in domestic partnerships, a clear equal protections violation.

States' Roles as 'Laboratories of Democracy'

This civil-unions argument ties into the argument that I made in Part 3 about DOMA's effect on the status quo of American marital law. Because DOMA instituted a federal definition of marriage and limited that definition to include only heterosexual couples, it took away the rights of states to fully experiment with offering equal marriage rights to gays and lesbians. All those states could offer to their gay and lesbian citizens was half-equal marriage, protected under state law but vulnerable under federal law. Moreover, as the Commonwealth of Massachusetts argued in court, DOMA puts states with marriage equality at risk of losing federal funds that could be rescinded by the U.S. government under the rationale of DOMA.

A U.S. Supreme Court decision striking down DOMA would create a new legal reality and open up the door to challenging Prop 8 (and other state marriage bans) on new equal-protection grounds both at the state and federal levels. These lawsuits would essentially be able to make the claim that civil-unions and domestic-partnership laws in states across America would have to be converted into marriage-equality laws in order for them to pass constitutional muster on equal-protection grounds. This argument would no doubt find various levels of success in different states based on their political inclinations, but it would have an enormous impact on the push for full marriage equality, because the argument that civil unions and marriages offer the same rights would no longer be valid.

In light of this possibility, one could make the argument that a DOMA decision by the Supreme Court would essentially preclude a decision on Proposition 8, because it would so dramatically affect marriage-equality and civil-unions law in states across the country. At the very least, because of the civil-unions issue, it it clear that a DOMA decision at the Supreme Court before a Prop 8 decision would be a more logical one, because striking down DOMA would affect future Prop 8 litigation, but striking down Prop 8 would have no effect on DOMA. Before we can truly fight the battle for full federal marriage equality in the courts, we have to overcome DOMA, which only allows gay couples equality under state law and perpetuates discrimination against them by the federal government.

In Part 5, the final installment of this series, I will look at why the marriage-equality movement should care about the path that marriage lawsuits take through the court system, and I will explore how we can ensure that the gains we make in the courts are long-lasting and create a strong foundation for full equality for LGBT Americans.

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Jacob Combs is a contributor and writer at