Breaking Down the Marriage Cases
My sister-in-law is from Brazil. She never worked or went to school in the U.S. When she met my brother, she didn’t speak English very well. A few months after meeting each other, they moved in together and shortly thereafter, got married. Their marriage allowed her to become a legal permanent resident. She has enjoyed this status for the past 9 years.
My friend is from Germany. She came to the U.S. to go to school at Webster University. She quickly became fluent in English. While in college, she met Kelli. They have been in a committed, loving relationship for over 7 years. My friend works as a high school math teacher. Despite going to school here, working and educating our children here and being in a long-term relationship with an American citizen, my friend is not a legal permanent resident. Her time in the U.S. is dependent on visas. There have been times where she has feared she may lose her visa or not get it renewed. Kelli and my friend would like to get married. However, even if they were to get married in Iowa or Massachusetts or New York, my friend would not acquire legal permanent resident status.
My friend has been kept from becoming a legal permanent resident because she wanted to marry another woman, and DOMA refused to recognize such a marriage.
After today, that will change.
Can you find the 4 a-holes who don’t want to give same-sex couples any rights? Hint: they’re all men and 3 of them are sitting right next to each other.
Here’s the good news from the Supreme Court:
- Marriage is legal for all consenting adult couples in California.
- The federal government can no longer deny benefits to couples whose marriage is legally recognized by a state.
- My friend will be able to get married in California (or another state that allows all consenting adult couples to marry) and will be able to get (at least some) federal benefits, including a legal permanent resident status.
If I’m being honest, I wanted more.
So here’s the bad news from the Supreme Court:
- The Court didn’t find due process or equal protection violations. The Court reversed DOMA because defining marriage has historically been a power reserved to the states. It was Congress’s usurping of that power which got DOMA ruled unconstitutional. A due process violation would have recognized that marriage is a fundamental right for same-sex couples, just as it is for opposite-sex couples. An equal protection violation would have recognized that there is no good reason to distinguish among same-sex and opposite-sex couples for the purpose of defining marriage. If the Court had ruled on either due process or equal protection, it would have given states and lower courts a good guideline of how to approach laws targeting homosexuals. The decisions today instead left us with the same hazy policy that the Court has denied to refine for years. The Court could have been much clearer if they had ruled on same-sex marriage the way they ruled on interracial marriage. In Loving v. Virginia, the Court ruled that bans on interracial marriages violated both the due process and equal protection clauses of the 14th amendment. This decision invalidated anti-miscegenation laws across the country.
This guy’s job is very similar to that of the Supreme Court’s.
- Sexual orientation was not given protected status under equal protection. This means that it is still much easier to make laws targeting homosexuals than laws targeting women or racial minorities, which enjoy judicial protections. Romer v. Evans is the case that has the last word on the issue, and it gave sexual orientation a small amount of protection. A state would never get away with limiting adoption to women or white people. Unfortunately, they can still get away with limiting adoption to opposite-sex couples.
- Same-sex couples’ rights will not be entitled to full faith and credit. The Windsor case ruled section 3 of DOMA (which defined marriage as between one man and one woman) unconstitutional. Section 2 of DOMA allows states to refuse to recognize the legal status of same-sex couples legally married in other states. This means that a couple married in Iowa might not be treated as a married couple in Missouri. This could prevent same-sex couples from getting state-specific benefits, divorce decrees, etc.
16-year-old bride + 51-year-old groom = marriage recognized by federal government and given full faith and credit by every state in the union.
- The 9th circuit opinion on Prop 8 was vacated. This means that the district court opinion stands. The district court opinion found that Prop 8 was unconstitutional, so marriage for all consenting adult couples will be available in California. Nonetheless, this opinion is only good in California. If the Court had affirmed the 9th circuit’s decision, same-sex marriage bans in other states would be called into question, if not out rightly unconstitutional. Because of their decision to vacate, every other state ban on same-sex marriage remains firmly in place. In fact, there could be issues with obtaining certain federal benefits if their state of residence does not recognize their marriage. Many of these questions are left to the executive branch now, which must figure out how federal benefits will be distributed given the myriad of state laws on same-sex marriage. Luckily, the head of the executive branch is pretty keen on getting all married couples their federal benefits.
So, while today is a great victory for human rights, it is also a reminder of how far we have to go.