Thoughts on the US Supreme Court’s Gay Marriage Decisions

I’ve long been a supporter of gay marriage (on largely conservative grounds), so I was pleased with the results of  the US Supreme Court decision in United States v. Windsor (the companion case, Hollingsworth v. Perry, while it effectively legalizes gay marriage in the state of California, was actually decided on narrow procedural grounds, so really doesn’t say much on the subject one way or another).   But Windsor’s an interesting case that will blow-up a lot of presumptions around  civil rights in the US.

First, it’s worth recalling that Windsor was, at its core, a tax case.  At issue was whether Edith Windsor was entitled to rely upon a federal estate tax exemption for surviving spouses which, if available, would have saved her $363,053 in estate taxes on the death of her spouse, Thea Spyer but which she was precluded from using by virtue of the definition of “marriage” and “spouse” in the Defence of Marriage Act (DOMA) .  While the Court’s decision, to strike down section 3 of DOMA on the grounds that it violated the equal protection provisions of the 5th amendment, is (correctly) seen as a victory for gay rights, the immediate result is that Ms. Windsor is now $363,053 richer.   While civil rights disputes are invariably presented as battled between the oppressed and the powerful, I can’t wait for the inevitable Onion headline on this case:  “US Supreme Court Upholds Right of Rich White Woman to Pay Lower Taxes”.  And people say that tax law is boring!

Secondly, and perhaps more interestingly, is the basis of the majority’s decision, because it goes against the conventional wisdom on civil rights in the US.  While the majority found that DOMA violated the equal protection provisions of the 5th amendment it sidestepped the issuer of whether a prohibition on gay marriage, per se, was in violation of the 5th amendment.  Instead, in a clever move, it founded its objection to DOMA on surprisingly conservative grounds – an appeal to states rights.

The majority observed that, in the US, the definition and regulation of marriage is a matter that is solely within the realm of state authority.  As such, it was up to the states (in this case, New York State) to decide whether to recognize gay marriages.  However, if a particular state chose to recognize gay marriage, it was not open to the federal government to decide that it would ignore otherwise lawful marriages in that state on the basis of the sexual orientation of the parties.  Doing so “violates the basic due process and equal protection principles applicable to the Federal Government”.  More to the point, it represents a federal intrusion or interference in sovereign state choices about who may be married.

It’s a clever argument.  Once you accept that the States have sole authority over defining and recognizing marriage, it’s hard to justify a federal rule which fails to give full protection to those, otherwise valid, marriages.  In the absence of any particular compelling rationale for not giving effect to those marriages (and I’ve never heard any particularly compelling case against gay marriage, and I can think of many good arguments, including good conservative arguments, for gay marriage), DOMA was DOA.

Now, on one level, this is a rather narrow ruling.  Because the majority ultimately decided the case by requiring the federal government to give effect to state recognition of gay marriages, it was able to side-step the question of whether a prohibition on gay marriage, per se, was unconstitutional.  As Justice Roberts noted, the same logic that gives effect to gay marriages in this case, would prevent any effort by the federal government to impose the recognition of gay marriage on other states.  It is, however, a politically clever ruling, in that conservative opponents will be hard-pressed to object to a ruling which gives effect to the undoubted rights of the states to define marriage as they see fit.

Still, the majority’s ruling is notable, because it moves away from a central tenet of US thinking around civil rights.  Owing to the history of the civil rights movement coming out of the Jim Crow south, the notion of “state rights” have often been placed in opposition to “civil rights” (e.g., the rights of states to maintain segregation and Jim Crow laws vs. the rights of African Americans not be discriminated against).  In that context, federal legislation overriding perceived states right have been seen as advancing civil rights.

This decision, however, reminds us that federalism, and “state rights” can just as readily be tool for civil rights as a barrier against them.  It isn’t alway state governments that are the “baddies” on the civil rights front, and federalism can protect individuals from overreach by the federal government.  Moreover, it also gives citizens choice between the polices of different states, and allows states to experiment with new policies (such as recognizing gay marriage) to serve as examples for other states.  Citizens whose states won’t recognize their relationships can vote with their feet by moving to those states that will.   While the court’s decision in Windsor will be celebrated as a victory for gay rights, it should also be recognized (and celebrated) as a victory for federalism.

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