As you are no doubt aware – every major newspaper in the country has it splashed across the front page and it’s been all over television and the Internet for the past twenty four hours – the Supreme Court, yesterday and today, handed down a set of complicated rulings that get into issues such as standing, equal protection, and state sovereignty, but that have the net effect of a near across-the-board win for equality groups.
- United States v. Windsor: The Supreme Court struck down the Federal ban on marriage equality stating that the government cannot discriminate against lawfully married gay people, that any discrimination is a violation of the equal protection guarantee of the U.S. Constitution, and that there is absolutely no rational reason to oppose offering the nearly 1,100 benefits of marriage except as a form of bigotry designed to stigmatize a minority. The ruling is so strong and unequivocal in its insistence that discrimination or opposition to gay married couples is wrong, it caused Scalia, in his minority dissent, to decry that the Court has now declared anyone who opposes marriage equality as “enemies of the human race”. What is amazing about the Windsor case is that it is a dispute over taxes! Never underestimate how far an American citizen will go to avoid sending more cash to the government (in this case, the government was wrong; I’m very happy Windsor, who is now widowed, will be getting a $363,053 refund as she never should have had to pay the money in the first place, highlighting just how discriminatory the law in question, called The Defense of Marriage Act, was). You can read the full decision here (PDF).
- Hollingsworth v. Perry: The Supreme Court faced a tough technical question. In 2008, voters in California narrowly approved a measure that took away marriage equality from gay couples living in the state, who had already enjoyed it for several months. The ban was challenged on constitutional grounds by two of America’s most famous lawyers, conservative Ted Olson and liberal David Boies, who teamed up because they thought it was a direct assault on the rights of minorities and gave the government too much power. Proposition 8 was struck down after an exhaustive trial that resulted in a very strong ruling. It was then appealed to the 9th Circuit, which also found it unconstitutional. Then the Supreme Court took up the appeal. (It is actually a lot more complicated but I’m summarizing here.) The problem was that the Governor and Attorney General of California agreed with the ruling that struck down Proposition 8 and told the court that they believed the ban was unconstitutional. As a result, the group that was behind the ballot initiative raised millions of dollars and defended it in court. The Supreme Court said that this was unacceptable as the ballot proponents had no “standing” because they were not the state itself, and thus would suffer no direct harm. This vacated the 9th Circuit decision, but left the trial court decision in force, which means Proposition 8 is now dead in California. The Governor and Attorney General have all but stated marriage licenses will resume within thirty days. You can read the full decision here (PDF).
- Diaz v. Brewer: The Supreme Court had to look at a case that was caused when the newly elected Governor of Arizona, Jan Brewer, took office. She stated at the time that, “God has placed me here” to do His will and run the state. One of her first actions in the midst of the Great Recession meltdown as the world was falling apart was to stop everything and push for a law that took away benefits, including health care, from gay employees and their children. (She also took away benefits from full-time college students, disabled adult dependents, and children of non-married parents, just for good measure.) The District Court found, and the 9th Circuit upheld, that her actions were unconstitutional because you cannot target a specific group of people for harm simply because you don’t like them; practically speaking, you must treat gays and straights the same. The Supreme Court let the 9th Circuit ruling stand and so now the law is dead.
The results were sweeping, even though they fell short of striking down bans in the Southern and Midwestern states and / or requiring states to acknowledge marriages performed elsewhere. As Scalia correctly predicts (in his case, bemoans), though, they lay the framework for a Brown v. Board of Education decision, which is coming within a decade. There is no getting around it now. Before long, marriage equality will be coming to Georgia, Mississippi, and Louisiana.
Here is where we are now. At the Federal level, gay married couples are now entitled to nearly 1,100 rights that were previously denied (PDF). There are so many things that even I don’t think of very often as you just take things for granted. Here is a tiny sampling of them:
- Sponsor international spouse for a green card or citizenship
- File joint bankruptcy petitions
- Visitation rights in hospital or prison
- Next-of-kin emergency medical proxy
- Joint adoption and foster care
- Military base housing allowances, facilities, and family accommodations
- Legal right to change surname upon marriage
- Right to determine funeral arrangements for deceased spouse
- Military spouses to be buried together in Arlington National Cemetery
- Renewal and termination of copyright protections for a spouse’s intellectual property upon death of the spouse
- $100,000 benefit to the spouse of a public safety offer who dies in the line of duty
- Tax-free transfer of assets and property among spouses
- Right to be informed of probate proceedings
- Access to “family only” services, including to demand family discount rates in public accommodations such as theme parks, hotels, country clubs, gyms, etc.
- Enter into a prenuptial agreement
- Receive employer-sponsored health benefits
- Receive a veteran’s pension, educational assistance, nursing home care, and health care
- Joint tax filings
- Not have your spouse testify against you in criminal proceedings
- Not be forced to testify against your spouse in criminal proceedings
- Water rights inheritance for certain real estate transactions
Concurrently, the California decision now adds another 38,040,000 Americans to the list of folks living in states with full marriage equality, bringing the total to 94,958,710 people. That new tally now represents around 30% of the entire nation and is set to grow in coming months as several more states have a high chance of passing their own marriage laws through the state legislatures.
In any event, if you are married, gay, and live in one of the orange states on this map that has been going around social media today, you are now fully equal under Federal and State law. If you live in a gray state, your marriage is equal on the Federal level, but the state denies you your basic rights, something that will be corrected within the next few years. The map is deceptive for the reason we just discussed and the reason you should instead use a cartogram – the states in orange represent 30% of the entire population of the country, whereas a lot of those middle states are relatively empty. This presentation vastly understates the cultural, legal, and practical ramifications of the decision.
What interests me about the map, and we’ve talked about this on other issues, is how it almost perfectly mirrors the geographic migration of all social change in the United States. It is practically identical to the Slave States vs. Free States map of the 1800′s. It is practically identical to the map that allowed women to vote or not vote prior to the ratification of the 19th Amendment. That phenomenon is fascinating. Part of it has to do with population concentrations and transportation infrastructure. It’s like a symphony of mental models that is worth studying if you enjoy solving complex problems.
Some agencies are going to run into paperwork nightmares. For example,the IRS will have to change its policies to permit married couples to file joint tax returns. This one will be interesting because the IRS normally goes off the state of residency for tax policy, not state of marriage celebration. However, given the scope and power of the Windsor ruling, if the IRS attempted to deny a gay couple living in a non-marriage equality state the right to joint tax returns even though they were legally married in another state that did recognize it before moving, there is no way it would stand. Besides the fact the Federal Government was just told it has no compelling interest in, nor can it continue, to discriminate, it would be a violation of an American citizen’s constitutional “right to travel” or “freedom of movement” among the states, which has been recognized as a fundamental right since 1869 in Paul v. Virginia. There is some speculation this potential roadblock could be solved by a directive from President Obama, who has already ordered the Attorney General of the United States to move quickly to make sure all executive branches of the government are complying with the decision. Time will tell how it resolves, but the end is all but guaranteed even if there are fights along the way.
The same goes for the Social Security Administration. It, like the IRS, is going to have to change its regulations because it now looks at state of residency versus state of marriage, which will not be tolerable under the Windsor ruling. There is no way the Federal government will be able to justify denying benefits to a lawfully married couple even if they happen to reside in a state that refuses to accept that reality.