As a law professor, I read a lot of court cases, from the technical and obscure to the epic and revolutionary. Rarely do I sit down to read a case that I know will, upon its publication, change my life dramatically. Shortly after 10:00 a.m. this past Wednesday, I had that experience. I am not a constitutional law scholar. I am a law professor who practices and teaches in the areas of mental health law and women's health. But I am also a woman who is married to another woman, who happens to be a federal employee. We have a two-year old daughter. For me and my family, this week's Supreme Court Opinion in U.S. v. Windsor, striking down the Defense of Marriage Act (DOMA) and mandating federal recognition of same-sex marriages like mine, was a game-changer.
I, like many of my colleagues and students, rushed to download the opinion as soon as it was released. I immediately started pouring over the more than 70 pages of text as quickly as I could. As a lawyer, I am trained in the dispassionate exploration and analysis of difficult legal questions. As a law professor, I teach this skill to my students. But in reading the Windsor opinion earlier this week, gone went my dispassion and objectivity.
By the time I got to the middle of page 22 of Justice Kennedy's majority opinion in Windsor, I stopped reading. I picked up the phone, called my wife at work, and resumed reading aloud to her each word, slowly and carefully. I started off by reading these words,
"DOMA's principal effect is to identify a subset of state sanctioned marriages and make them unequal. The principal purpose is to impose inequality.... Responsibilities, as well as rights, enhance the dignity and integrity of the person."
As I continued reading the opinion to her, my phone began to buzz and beep and twitch. I was bombarded with calls, texts, Facebook posts, and emails from family, friends, students, and colleagues. What does the opinion mean? Was the opinion what you expected? What was the Court's rationale? What's going to happen next? I held off answering their questions as long as I could.
Finally I reached what, to me, was the most powerful passage in the Court's opinion:
"By creating two contradictory marriage regimes within the same State, DOMA ... undermines both the public and private significance of state sanctioned same-sex marriages; for it tells [same-sex] couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition... And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question 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."
After taking a few moments to reflect with my wife on the significance of these words, I began returning those calls and texts and emails from my friends and family, and here is what I said in answer to their questions.
What does the opinion mean? In short, a great deal to a great many people. First, there is the legal explanation: U.S. v. Windsor was a case about the constitutionality of the Defense of Marriage Act (DOMA). DOMA is a federal law signed by President Clinton in 1996 that, among other things, created a federal definition of marriage as a union between one man and one woman. In effect, DOMA meant that couples like my wife and me, who were lawfully married in one of the roughly dozen states in the U.S. that permit same sex marriage (in our case, Massachusetts), could receive all state protections that flow from marriage but none of the federal protections associated with marriage. And the same distinction applied to the legal responsibilities of marriage. Over 1,000 federal laws were re-written by DOMA to be discriminatory, and there are same-sex couples throughout our country who have been impacted by nearly all of those laws. Yesterday, a bare majority of the U.S. Supreme Court (5 of the 9 Justices), led by Justice Kennedy, declared this definitional provision of DOMA to be unconstitutional. In short, the opinion means that same-sex couples who live and marry in states that permit same-sex marriage will now enjoy full state and federal recognition of their marriages, like any other married couple in their state.
But what does it really mean? Let's take my family for an example. My wife has a family health insurance plan through her federal employer that covers her and our daughter. Before this historic opinion, I was not allowed to be on the family health plan. In the eyes of her employer, the federal government, my wife and I were legal strangers. As a result, we paid for her family plan while I carried a separate insurance plan to cover myself through my University. I could have carried my wife and daughter on my plan (my employer is not a federal agency and recognizes our marriage under Massachusetts law), but the federal government would have taxed me for my employer's contribution toward that plan, as if that contribution were a holiday bonus. After Windsor, I can now drop my extra health plan and join in my family's plan. Perhaps more importantly, if ever I am unemployed (for example due to illness or to stay home and parent our daughter), I will be able to maintain my wife's health insurance.
Before this historic opinion, my wife and I had to file our taxes as married for state purposes but were forbidden to do so for federal purposes. This created a mess each April involving no fewer than four tax returns for two people! We filed two individual federal returns denying our marriage and reporting ourselves as single, which required cover letters explaining this legal fiction. We then filed a joint state return acknowledging our married status, which, in turn, required the preparation of a fake or "shadow" joint federal return (which we needed in order to calculate our Massachusetts taxes but which we could not submit). Also under DOMA, my wife and I had to decide which one of us would claim our daughter as a dependent for tax purposes. I assure you that felt like both an indignity and a falsehood. After Windsor, we will be proud to submit one joint federal return and one joint state tax return and to declare our joint support for our daughter.
Before this historic opinion, we engaged in careful and costly estate planning to compensate for the fact that, should something happen to my wife, I could not collect her pension like other federal spouses. Now, like all heterosexual married federal spouses, I will be automatically named a beneficiary on her plan.
Before this historic opinion, I could not take Family Medical Leave Act (FMLA) leave to care for my wife if she were ill. Now I have that right too.
About three weeks before this historic opinion, my wife and I travelled to Florida for a vacation with our daughter. We brought bathing suits, lots of sunblock, things to keep our daughter occupied on her first plane ride, and of course hard copies and a jump drive containing our wills, our healthcare proxies, our durable powers of attorney, our marriage certificate, and the adoption papers for our daughter (my wife gave birth to our daughter but we had to adopt her jointly to ensure I would be treated as her legal parent when we traveled out of the state). I don't know many heterosexual couples whose packing list reads like a probate court docket. To be clear, the Windsor opinion doesn't fix this problem. Its holding does not require other states to recognize my Massachusetts marriage, but only requires the federal government to recognize it. That said, the fact that the federal government sanctions our family unit adds a layer of protection when we travel within the U.S. Until we have total marriage equality throughout the U.S., we will always be cautious when traveling outside of marriage equality states. From now on, however, we will feel at least a small measure of comfort.
Still, the ways in which DOMA affected my family were miniscule in comparison to other gay families, such as service members who spouses were denied housing, health benefits, and survivor's benefits; immigrants who married U.S. citizens but were unable to live with them in the United States; elderly widows denied Social Security survivor's benefits; seriously ill spouses who lacked adequate treatment for their illnesses because they were shut out of their partners' health insurance policies; and Eddie Windsor, the Plaintiff in the Windsor case, who loved and cared for her wife for decades under the shadow of unequal treatment.
For a comprehensive guide to the far-reaching impacts of the fall of DOMA, I highly recommend a joint publication by GLAD and several other LGBTQ-rights organizations entitled, "After DOMA: Guide for Same-Sex Couples."
Was the opinion what you expected? Yes and no. I, like many advocates for LGBTQ equality, expected a closely divided Supreme Court, led by Justice Kennedy, to strike down Section 3 of DOMA (the federal definition of marriage), which is precisely what happened. What came as more of a surprise was precisely how Justice Kennedy came to this conclusion. The Court could have relied solely on "federalism" arguments, saying that the federal government lacks the authority to buck state marriage laws, since marriage has always been a matter of state law. Instead, the Court went in a different direction, relying on the legal doctrine of "equal protection" to strike down the law. In essence, Justice Kennedy, speaking for the Court, said that the equal protection clause of the Fifth Amendment of the U.S. Constitution prohibits the federal government from treating same-sex marriages differently than heterosexual marriages. He wrote:
"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, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic 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. This places same-sex couples in an unstable position of being in a second-tier marriage."
So what? Who cares how the Court got there, as long as they got there! I care, and I would guess many other gay and lesbian families do too. By analyzing DOMA through an equal protection lens, the Court exposed to the nation and the world what we saw all along as the discriminatory motivation behind DOMA. Justice Kennedy laid out for all to see that the sole purpose of this law was to "impose a disadvantage, a separate status, and [] a stigma upon all who enter into same-sex marriages... " For those living in DOMA's shadow, those words were extraordinarily validating.
In declaring an equal protection interest in same-sex marriages, the Court accomplished what it could not have had it relied on mere federalism principles. The Court openly affirmed the dignity of the hundreds of thousands of same sex families in the U.S. and weighed in on the side of our common humanity. The Court got it right here. In my world, the Court's opinion in Windsor was about far more than my taxes, my health insurance, and my financial rights in marriage. The Court's opinion was about feeling a little safer getting on a plane and leaving Massachusetts with my family. It was about how my wife and I will answer our daughter's questions about our family. It was about, for the first time, feeling equal in the eyes of my government.
What's going to happen next? A whole bunch of litigation and advocacy! The Court very clearly attempted to narrow the impact of its ruling by limiting its holding to only those marriages recognized by the 13 states and D.C. that allow same-sex couples to marry. (Significantly, California became the 13th state after the Supreme Court left the District Court's ruling in place in the companion case of Hollingsworth v. Perry.) The Court in Windsor very intentionally did not require states that forbid same-sex marriage to legalize same-sex marriage or to recognize same-sex marriages from other states. The fundamental problem with the Court's attempt to narrow the impact of the opinion, is that the very principles of equality it relied on in striking down DOMA cannot ultimately sustain the weight of different (i.e., unequal) treatment by different states.
Pretty soon, someone like me -- perhaps a teacher with a same-sex federally employed spouse -- will need to move for his or her job. He or she will move with his or her family to Colorado, or Texas, or Wisconsin or any of the 36 states that prohibit same-sex marriage by state law or state constitutional amendment. Having lived with both federal and state marriage recognition, what will then happen to the couple's marriage in the eyes of the law? Their new home state will refuse to recognize their marriage (that's nothing new -- that happens already). What's more interesting is that the federal recognition guaranteed by the Supreme Court in Windsor will break apart at the seams. Some federal programs will look to the new state's laws and cease to recognize the marriage, while other federal programs will look to the laws of previous state and continue to recognize the marriage. That couple, when faced with a confusing and contradictory mix of federal recognition and rejection of their marriage, combined with a loss of state recognition, will sue. As many are predicting, under the very principles articulated by the Court this week, that couple ultimately will win.
In the meantime, we can expect an explosion of legislative activity on the issue of same sex marriage, with advocates focusing their energies on those states they feel they can win. For example, advocates will seek to overturn state constitutional amendments that ban same-sex marriage in states like Oregon, and they will work to achieve legislative victories in states like Illinois, Hawaii, and New Jersey.
Not surprisingly, Justice Scalia wrote a scathing dissent (disagreeing opinion) in Windsor, critiquing the Court's opinion in virtually every respect. Among his primary fears about the majority's opinion is that it lays the foundation for a future ruling that would declare all state prohibitions on same-sex marriage to be unconstitutional. He writes,
"the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today's opinion. ... How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.... As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe."
It is rare that I agree with Justice Scalia, but I am not alone among gay-rights advocates in thinking his prediction is spot on. Unlike Scalia, we are thrilled by the prospect that this is just the beginning for marriage equality. So what's next you ask? The other shoe...