Same-Sex Marriage and the Next DOMA Battle

The battle for state recognition of same-sex marriage has just begun.  While many might think that the Supreme Court decision in United States v. Windsor striking down section 3 of the Defense of Marriage Act (DOMA) represents the last judicial word on the issue, that is far from the case.  Instead, that decision has changed the legal debate and strategy regarding same-sex marriage, and it still involves DOMA.

            Imagine this likely scenario.  A same-sex couple is legally married in Minnesota and they decide to relocate to Florida, a state that does not presently recognize such marriages.  This couple then asks Florida to recognize their marriage with the intent of enjoying the state’s hundreds of statutory benefits regarding adoption, devising of property, or taxes that are available to married couples.  Is the State of Florida required to recognize this marriage?  There are powerful legal arguments to say yes, and they were only strengthened after the Windsor decision.

            Consider first what the Windsor case was about.  It involved a challenge to section 3 of DOMA. Passed in 1996, section 3 defined marriage at the federal level as exclusively a relationship between one man and one woman.  The practical effect was that all federal laws referring to marriage would use this definition.  This meant that any state which did recognize a same-sex marriage would not have such a union recognized under federal law.  In Windsor, at issue was a surviving member of legally married same-sex couple in Minnesota.  She had inherited property from her partner and sought to claim federal tax benefits as a couple and not as a single person. However, DOMA prevented that and she sued, claiming she was entitled to pay a lower tax as a surviving spouse.  Windsor challenged section 3 of DOMA as unconstitutional and the Supreme Court agreed.

            Writing for the Court, Justice Kennedy argued first that marriage remained a state issue.  By that, states generally had the authority under the Tenth Amendment to determine who could marry.  DOMA interfered with that state prerogative. What it did according to the Court was to single out a specific group for discrimination or special burden that state law sought to protect.  Such a singling out of a group–here same-sex married couples–was both a violation of the Fifth Amendment’s Equal Protection clause.

            This decision thus settled the issue of the constitutionality of section 3 of DOMA and federal recognition of state approved same-sex marriages.  Yet it did not address an equally important topic–Section 2 of DOMA and state recognition of same-sex marriages performed in other states. 

            Many have forgotten why DOMA was originally passed.  In the early 1990s a series of court decisions in Hawaii moved that state close to the recognition of same-sex marriage in that state.  Fearing that such a decision would then require other states to recognize these Hawaiian marriages, Congress enacted DOMA.  But the real heart of DOMA was not section 3 but section 3.  Section 2  declared: “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”  In effect, no state would have to recognize a same-sex marriage as valid in their state even if that couple was legally married in another state.  Thus, Florida would not have to recognize  as valid a Minnesota same-sex marriage in their state, even if that couple relocated to their state to live.

            Even before DOMA many claimed that section 2 was unconstitutional, The argument was that it violated Article IV, section one of the Constitution–otherwise known as the Full Faith and Credit clause.  That clause states: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” Under the Articles of Confederation, the thirteen original states often refused to recognize legal acts from other states, as each often discriminated against one another.   In the 1942 in Williams v. North Carolina the Supreme Court declared the purpose of the Full Faith and Credit Clause was “to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation.”

            What does this clause practically mean?  The most obvious issue is marriage.  Couples legally married in one state do not have to get remarried in another state when they move into it.  Divorce proceedings and many other court judgments and laws have to be recognized too by other states.  This is where the challenge to section 2 of DOMA comes in.

            While Congress has authority to define how such full faith shall be proved, it is not clear that  it has the authority to limit the scope of the Full Faith and Credit clause.  It is doubtful that Congress could pass a law permitting states to refuse to recognize opposite-sex marriages performed in other states, or even to allow them to refuse to recognize racially-mixed or mixed-faith marriages.  The same principle applies to same-sex marriages.  While Justice Kennedy in Windsor did say that marriage was a state issue, the Full Faith and Credit clause can be read as an abrogation of that state prerogative in some instances.  Moreover, given the language of Windsor where the Court assailed the federal government under Section 3 for singling out same-sex couples for special burdens after a state sought to protect them, one can apply similar logic under the Fourteenth Amendment Equal Protection clause.  One can argue that states cannot single out same-sex couples for special burdens and treat them differently from opposite-sex couples.

            This argument becomes even stronger if one brings in three other constitutional rights or clause.  First, there is the right to interstate travel.  In Shapiro v. Thompson that individuals have a right to interstate travel and that individual states may not interfere with such a right.  Such a right the Court ruled is inherent in the Constitution although they chose to use the Due Process and Equal Protection clauses to support their claim.  Then in Saenz v. Roe the Supreme Court used the Privileges and Immunities clause of the  Fourteenth Amendment to again assert a right to interstate travel.  In both cases at issue were state laws imposing durational residency requirements  upon relocating individuals who wished to collect public assistance welfare benefits.  In both cases the Supreme Court invalidated such laws as burdening these rights.  Finally, one could also argue that the Commerce clause in implicated here.  Refusal by a state to recognize a same-sex marriage performed in another state creates an impediment to interstate commerce. It places a burden on same-sex couples wishing to relocate to another state for business or employment.

            So now think about the legal status of section 2 of DOMA when it comes to a legally married same-sex couple from Minnesota moving to Florida.  One can argue first that Congress lacked the authority under the Full Faith and Credit clause to enact section 2.  States are then precluded under this clause, as well under the Equal Protection clause from  refusing to recognize same-sex marriages performed elsewhere. These constitutional clauses, Supreme Court interpretation of them, and the reasoning in Windsor are enough to argue that states are not free to single out same-sex marriages from legal recognition if performed in another state.  This is perhaps the next legal battleground on this issue.

Same-Sex Marriage and the Beginning and End of Minnesota Politics: A Tale of Four Circles

The best thing that could happen to the Republican Party of Minnesota (RPM) if not the national Republican Party,  is for same-sex  marriage to be legalized.  Its legalization would remove from the agenda one that the Republicans are losing on, and one that is continuing to alienate them from younger millennial voters and moderates.  Legalization of same-sex marriage would permit Republicans to move away from social issues and concentrate on their core economic and limited government message.
    Assuming Monday’s passage of same-sex marriage by the Minnesota Senate the state will have come full circle four ways.  The first circle to close is  Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971).  Minnesota is home to the first case in the nation adjudicating bans on same-sex marriage.  In Baker at issue was whether a state law lacking  an express statutory prohibition against same-sex marriages signaled  a legislative intent to authorize such marriages. The Minnesota Supreme Court declared not, contending furthermore than the ban on same-sex marriage did not violate the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution.  Legalization of same-sex marriage in Minnesota would thus overturn Baker, bringing to an end the first and original precedent standing against marriage equality.
    The second circle to close involves Congresswoman Michele Bachmann, Minnesota’s Defense of Marriage Act, and same-sex marriage.    Bachman’s political career is intertwined with opposition to same-sex marriage.  In 1997 the Minnesota legislature adopted Minn. Stat. § 517.01, Minnesota’s Defense of Marriage Act (DOMA) restricting marriage to that of couples of the opposite sex.  DOMA and Baker should have been enough to persuade social conservatives that same-sex marriage would not become the law of the land in Minnesota.  But it was not. 
    Bachmann’s 2000 run for the Minnesota Senate and successful defeat of a Republican moderate was premised as much upon opposition to gay rights and same-sex marriage as it was on her anti-tax positions.  Once elected she sponsored first in 2003 and then in 2005 state constitutional amendments to ban same-sex marriage.  Her fear?  A Minnesota Supreme Court would overturn Baker and DOMA.  Fear of  same-sex marriage played well as a springboard and theme in her 2006 election to Congress in a deeply conservative Catholic district.    Adoption of same-sex marriage in Minnesota, as well as the turning of the tide on the issue across the country, undercuts one of the defining themes of her political career.  She may continue to get elected as defending an embattled minority, but she will look increasingly anachronistic and shrill, making it even more difficult for her to win re-election in 2014.
    The third circle to close is on the RPM’s failed marriage amendment in 2012.  While Bachmann was no longer in the Minnesota legislature, her opposition to same-sex marriage lived on in a political party.  When the RPM was swept into control of the Minnesota Legislature in the 2010 elections the Republicans declared that the economy was job one.  Speakers Zellers pronounced it was all about jobs and not social issues.  Yet soon they strayed from that message.  Minnesota witnessed a budget gridlock and state shutdown and the defining theme of Republican control became their overreach on social issues, including the elections and marriage amendments.  Both went down to surprising defeats in 2012.
    The reasons for the crash of the marriage amendment are many.  It was about over-reach by Republicans and a misreading of their mandate (their mandate was actually more rooted in the 2010 opposition to Obama and the Democrats than in anything they offered).  It was about the cynicism  of some legislators saying that pushing the two amendments was a way to turn out their base in the 2012 elections, seeking to yet against rekindle the successful formula Karl Rove and the Republicans had used since 2004.  It was almost about the failure to see how the issue of same-sex marriage was a defining issue for the Millennials and how public opinion had shifted.  Republicans just did not see how the issue of same-sex marriage would counter-mobilize.
    Going into the 2013 legislative session many Democrats and Republicans argued that the 2012 results were not a mandate to support same-sex marriage but instead simple opposition to a constitutional amendment against it.  Some cautioned that pushing same-sex marriage would run the risk of DFL overreach, and initially Democratic leadership seemed to agree.  But others contended that were it not for the issue of same-sex marriage the Democrats would not have won in 2012 and therefore they had to deliver on the issue less than alienate their base.  The latter theory prevailed.  But it did so in a self-fulfilling way.  The momentum to oppose the marriage amendment was quickly turned around to support for same-sex marriage and quietly and slowly support for its legalization  was built.  Thus, the third circle–from a failed marriage amendment to legalization of same-sex marriage–also closes.
    The last circle is the re-redefining the RPM. The DFL wins on this issue, but potentially not as big as the RPM could.  DFLers were expected to push this issue and they delivered.  That is good for them.  But with the legalization of same-sex marriage the GOP loses a thorn it its side.  This issue drove many away from their side.  They had lost an entire generation of young people because of this issue.  Take same-sex marriage off the issue and it opens up new possibilities for the RPM to redefine a base that is old.  Of course the real danger for Republicans is that the social conservatives will seek retribution in the 2014 primaries and conventions, but what are they really able to accomplish?  They can destroy the party with unproductive infighting, or they too can move on.  For Republicans who voted to legalize same-sex marriage, if they can survive intraparty fights, they may emerge as the new voice of a redefined  GOP in a post-same-sex marriage world that focuses more on economics and small government than social issues.  This is where the party was a generation ago when the Arnie Carlsons and David Durenbergers were the face of the RPM.

Liberalism in Retreat--The Conservatism of Barack Obama

It may very well be that the legacy of Barack Obama is that he will destroy whatever is left of the liberalism of the Democratic Party.  At least this is the conclusion one can reach given his recent budget proposals and his continued advocacy for the use of drone warfare.  In so many ways, Obama looks even more conservative than his adversaries on the right.

By now it is common place to assert that the Democrats are the party of liberalism.  It is the party of FDR and JFK, of the New Deal and the Great Society, civil rights and taxes, abortion and gay rights, for the rights of the accused and against guns. This is the party that first Richard Nixon and then Ronald Reagan stereotyped and successfully ran against.  These two elections resulted in what was once thought to be a political realignment in American politics as Reagan Democrats and the once solid south moved into the column of the Republican Party. It was barely a generation ago that  critics hailed the demise of the Democrats as too liberal.  Between 1968 and 1988 Democrats won only one presidential contest, they lost control of the Senate in 1980, and they looked doomed.  Throw in the 1994 congressional losses and then again the beatings they took in 2002 and one could  have put RIP next to the Democratic Party.

But along came Bill Clinton.  He along with the Democratic Leadership Council contended that the party had become too liberal and it needed to move to the center.  And it did.  Clinton was a pro-death penalty president who signed DOMA, Don’t Ask, Don’t Tell, welfare reform, and limits on habeas corpus for prisoners.  He dramatically moved the Democrats to the center, as the story goes, and the result was that his party again became more electable.

But politics is not static.  While Democrats moved to the right, the Republicans shifted even further.  First with Bush and then with the TEA Party.  The center of American political gravity on many issues moved rightward.  And so has Barack Obama.

Initially though, Obama had everyone convinced that he was a liberal.  Maybe it was his race, or his appeal to a new generation of voters.  But back in 2008 many thought of him as the liberal candidate in the race, at least compared to Senator Clinton.  But compared to John Edwards and Dennis Kucinich he was a moderate.  That juxtaposition probably helped him in the battle for the Democratic Party nomination, but also his rhetoric at times sound progressive, especially when he talked of health care reform, gay rights, or the rights of workers.  His rhetoric sounded progressive, at least in comparison to the Bush era values as he spoke of closing Gitmo and ending the war in Iraq.  Even his 2009 inaugural speech trumpeted a liberal theme, but sadly the gap between rhetoric and reality grew.

Obama did call for major expansion of health care reform but he rejected calls for the more liberal single payer system that Senator Ted Kennedy and other liberals wanted.  He opted for the Republican solution–Romneycare–the Massachusetts model that the GOP and his 2012 presidential opponent once embraced.  Yes Obama also did end the war in Iraq but he also promised to commit  more troops to Afghanistan–transforming Bush’s war to his.  Additionally, Obama turned his back on many of his supporters.  He never supported the Employee Free Choice Act, a reform sought by labor unions to update the Wagner Act, he did not push for repeal of “Don’t Ask, Don’t Tell until  halfway through his first term, only getting it by capitulating on an extension of the Bush era tax cuts.  His health care reforms capitulated on abortion and reproductive freedoms for women, and he has never really pushed hard on global warming and the environment.  Finally, Obama continued  the Bush era initiatives to bail out the banks but not the home owners and Dodd-Frank, the major financial reform legislation, hardly will change banking behavior and discourage them from more risking lending in future.

One cannot deny that Obama has accomplished a lot and he deserves praise for all of that.  He has faced a hostile Congress, but do not forget that for the first two years he had significant Democratic majorities.  But with those majorities he has infuriated many in his party but a horrible set of negotiating skills.  He seems to give in, not negotiate.

But now there is a second term.  He began his quest by saying he had evolved on gay marriage.  He now supported it–an act of bravery when public opinion had already shifted.  He says he opposes the Defense of Marriage Act (DOMA) and his administration argued against its constitutionality before the Supreme Court, but his administration still enforces the law, prompting Chief Justice Roberts to exclaim that the President should have the courage of his convictions not to enforce the law if he thinks it is unconstitutional.

Obama’s second inaugural and his 2013 State of the Union speeches again sounded liberal.  He hit the themes of gay rights, guns, the environment, and economic justice.  Yet once again the gap between rhetoric and performance is wide.  Obama ended 2012 by securing tax hikes on the top earners and preserving it for the rest.  Yet he let the payroll tax expire, resulting in more of us paying more overall taxes now than before.

Obama continues to pursue economic policies that sound more conservative than liberal. His budget proposals to cut Social Security and Medicare give him little room to negotiate with Republicans.  Given his starting position, all he can do is move further to the right.  Sequestration was partially Obama’s idea and the percentage of government spending going to discretionary programs is lower now than it has been in a generation.  Obama has embraced austerity and deficit reduction as goals, again ideas favored by Republicans.  When push comes to shove, don’t be surprised if Obama endorses the Keystone Pipeline as an important jobs initiative for his administration.

But alas, there may even be one place where Republicans are to the left of Obama–drone warfare.  In a legal analysis as tortured as the memos drafted by the Bush administration, the Obama administration has endorsed presidential power to use drones in warfare, even up to the point of killing American citizens outside the United States.  Such brazen disregard for both domestic and international law must bring a smile to a Dick Cheney (who embraced gay marriage well before Obama).

How anyone can conclude that Obama is a liberal is beyond comprehension.  Nixon was more liberal, as was Eisenhower.  Obama’s liberal legacy is gone and now the question becomes how much of liberalism will he give away in his remaining second term.

Same-Sex Marriage and the Supremes: What will the Court Do Now?

    So after two days of arguments before the Supreme Court, what are the prospects for legalization of same-sex marriage across the United States if not in Minnesota?  The best guess right now is that there are not five votes to strike down all bans on same-sex marriage across the country but that instead potential inaction by the Supreme Court may be one of the best things to happen for those who support the right of gays and lesbians to wed.

Constitutional Law 101
    The Supreme Court under Justice Roberts has a history of closing the doors of justice.  What do I mean by that?  Since Roberts and Alito joined the Court the mostly conservative majority has issued numerous rulings making it more difficult for individuals and entities to bring cases.  The Court has taken a narrow view of standing.  Standing refers to whether a person has a right to bring a case to court.  Not everyone is allowed to bring a case to court.  One must show an injury.  By that, the Constitution and the rules of civil procedure require that  persons show that they are injured in someway–legally or injured in fact–and that they are the appropriate person or persons to claim that injury.  During Roberts' tenure, his Court has made it difficult for taxpayers to challenge government use of money for religious purposes, and in general has also made it hard (as in Walmart sex discrimination  case) for class actions to move forward.
     In other cases, when it comes to medical devices or generic drugs, the Roberts Court has made it difficult to sue on grounds that federal law preempts state law.  Finally, the Court has also  made the basic threshold requirements for alleging a claim or injury more difficult, giving judges more discretion to thrown out cases.  Finally, the Court has made it difficult to challenge the facial validity of a law.  This was the case with the Indiana voter ID case.
    In short, the Roberts Court is closing the door to the federal courts.
    Finally, there are two other points about constitutional law that one needs to know.  First, for a case to be brought in court there must be case or  controversy.  By that, there must be a real dispute with opposing parties.  If there are no opposing parties then there is no dispute and therefore the courts must dismiss the case.  Second, as a general principle, courts should generally not involve  themselves in political questions or disputes, reserving their resolution for Congress, the president, or the states.

Closed Doors but Coming out of the Closet?
    Normally closing the doors of the courts means a denial of justice.  But with the two gay rights cases before the Supremes, this closed door policy may bring same-sex marriage out of the closest?  How so?  One needs to understand what law professors call the procedural posture of the two cases.
    First look at the California Prop 8 case.  The CA Supreme Court declares that a state law denying same-sex couples the right to marry is unconstitutional.  Prop 8 is then adopted by voters to overturn that ruling.  Prop 8 is then challenged in federal district court and it is declared unconstitutional.  The 9th Circuit on appeal agrees, ruling narrowly that once rights have been granted they cannot be retracted for some group without violating the Equal Protection clause.
    However what makes the CA case interesting is that the State of California refused to defend Prop 8 on appeal.  Instead, the district court let some of the supporters of Prop 8 intervene to defend it.  This is where the problems begin.
    On Tuesday the Supreme Court asked whether supporters of Prop 8 had a right to bring the suit.  The Court said that the appropriate party to defend Prop 8 was the State and that these individuals lacking standing to bring the case.  Moreover, several members of the Court also wondered whether these supporters had suffered any injury in fact or law.  By that, can they show how same-sex marriages harm them or traditional marriages?  The Court seem unconvinced by their answers. 
    The standing and injury issues are important.  If there is no standing or injury, the case would be dismissed.  If dismissed, the lower court decision would stand, thereby invalidating Prop 8, and therefore by default legalizing same-sex marriage in California.  Six of the Supreme Court Justices  suggested this is a possible direction they may go.  Effectively, they are closing the door of the federal courts and that may work to the benefit of advocates of same-sex marriage.
    The same closing of a door may also work to the advantage of the same-sex marriage in the DOMA case.  Here, the challenge is the 1996 federal DOMA law denying federal benefits to same-sex couples even in states where such marriages are recognized.   But again there is an oddity to this case–the Obama administration has refused to support the constitutionality of the law in court and instead is arguing against it while still enforcing the law. The law is defended by the Republican Leadership in the US House of Representatives and not by the president (whose job it is to defend federal laws).
    Why is this significant?  There may not be a case or controversy here.   If no one is defending the law then the case gets dismissed.  Several Justices expressed concern about this along with concerns about standing.  Given that a lower court had ruled against DOMA, refusal of the Supremes to rule on this case may mean that the lower court decision stands and DOMA is gone.
    Finally, in both cases majorities seemed unwilling to want to rule in a way that would create a 50 state rule.  They expressed concern that for the Court to act would pre-empt states from experimenting with marriage, a traditional state function.  This was Kennedy’s  issue concerning the DOMA case.  Other justices thought that gay marriage was such a new concept that they should let states do what they want.  Still others raised concerns that DOMA stood in the way of state action and that federalism  dictated that DOMA was unconstitutional.

So what does all this mean?
    These procedural issues are important and may work to the benefit of same-sex marriage supporters.  It is clear the Roberts Court wants not to rule on these cases.  Yes, there are some Justices who would rule that bans on same-sex marriage are unconstitutional.  But it is not clear that there are five votes to do that.  Moreover, the nature of the facts in these two cases make it difficult  to reach this kind of ruling.  Do not expect either of these two cases to be clear rulings to be similar to the famous Loving v. Virginia that declared that bans on mixed-race marriages were unconstitutional. 
    The Court here could use standing, injury, or the case and controversy concepts simply to throw out the cases.  What would that mean? Prop 8 is gone and same-sex marriage in California  is legal and the DOMA is unconstitutional.  This may not be the bigger ruling many want, but it is a long way toward constitutional recognition of same-sex marriage.

The Minnesota Connection
    Minnesota figured prominently in the Prop 8 case.   In1971 the Minnesota Supreme Court ruled in Baker v. Nelson that Minnesota state law prevented same-sex couples from marrying.  This was the first ruling on same-sex marriage in America and I have covered this case in my State Constitutional Law course for over 20 years.  That case was appealed to the US. Supreme Court and the Supremes denied to hear it in part presumably because it did not raise a federal question.  This case was discussed in the Prop 8 case in terms of whether the denial in Baker still represented good precedent for the Supreme Court to stay out of the same -sex marriage dispute.
    Assume DOMA or Prop 8 falls, what does it mean for Minnesota?  Legally maybe invalidation of the federal DOMA might raise questions about the MN DOMA (although the MN DOMA is about MN recognition of same-sex marriages performed in other states).  Depending on how the Supreme Court rules, it may open up legal challenges to the state law.   Additionally, if the federal DOMA falls, then if MN legalizes same-sex marriage the federal government will have to recognize the marriage.  It is less clear legally what the Prop 8 case means for Minnesota.
    However, culturally, decisions in these two cases will have a major impact on Minnesota. It may create more momentum for Minnesota to act legislatively, especially if the legislature does not act this year.

Last Thoughts: Kennedy’s Swan Song?
    Every year I do a training session at Reuters/Thompson/WEST on the Supreme Court.  About three years ago I argued that Justice Kennedy’s last vote on the Supreme Court would be to strike down laws banning same-sex marriage.  He would do that and then resign.  I still am betting that.  Kennedy will go out as the most ardent defender of GLBT rights ever on the Court.  He will do that as conservative old line Catholic who is pro-life, anti-death penalty (for minors at least), and who supports prisoner rights.  His decisions read of words about respect for all life and about human dignity–including for gays and lesbians.