By Cody Drabble

Across California and the US, marriage equality advocates have been celebrating the US Supreme Court’s pair of landmark civil rights decisions. In US v. Windsor, the court struck down a portion of the Defense of Marriage Act limiting the federal definition of marriage to opposite gender couples. In Hollingsworth v. Perry, the court refused to reach the legal merits in an appeal of the trial court decision striking down Prop. 8, which allowed California counties to begin issuing marriage licenses to same sex couples.

The SN&R Page Burner spoke with McGeorge School of Law professors Lawrence Levine and Leslie Gielow Jacobs about the impact of the recent Supreme Court decisions and the future of marriage equality laws the US. Prof. Levine, an openly gay advocate of marriage equality, teaches torts and sexual orientation law. Prof. Jacobs, a former US Supreme Court law clerk, teaches constitutional law, national security, and remedies.

SN&R PB – Were you surprised at the result the US Supreme Court reached in either case?

Prof. Lawrence Levine:

“Yes. I was not surprised by the Prop. 8 decision [in Hollingsworth v. Perry], that they opted for a narrow path. No one, except for an eternal optimist, would have thought that the court would find a national right for gays and lesbians to marry. Five of them, in a very interesting, unusual mix of justices, concluded that there was not standing [for the Prop. 8 proponents to appeal the trial court ruling]. I would have preferred that they upheld the Ninth Circuit opinion.”

Prof. Leslie Jacobs:

“I really wasn’t. I thought the cases were going to come out that way. Even down to the “I hate hippies” case [Dept. of Agriculture v. Moreno] that’s cited in the DOMA decision.”  

SN&R PB – Were you surprised by the unusual split of justices supporting the No Standing result in Hollingsworth v. Perry? This did not appear to fall along expected ideological lines.

Prof. Leslie Jacobs:

“No, not really. I think there was stuff going on behind the scenes that led to the standing result. I think more than the standing doctrine was involved. I don’t want to say that the justices were just results oriented, but I have a feeling that they were talking about the substance as well, probably lobbying about the substance trying to get five justices to go one way or the other, and couldn’t do it. For that reason, I’m not surprised at the result.

Justice Kennedy is interesting because you could say there is a states’ rights theme running through both opinions. At the same time, he’s somebody who you might expect not to find standing, and he’s on the ‘Yes Standing’ side for Hollingsworth.”

SN&R PB – The US v. Windsor decision struck down just Section 3 of the Defense of Marriage Act, which limits the definition of marriage to straight couples, but not Section 2, which permits states to refuse recognition of same sex marriages from other states. Is a Section 2 challenge to DOMA inevitable?

Prof. Lawrence Levine:

“Yes, it’s inevitable and it’s not at all clear how that would come out. There’s a lot of thought that states have the right to define for themselves what marriages they recognize. If there is a state public policy denying gay marriage, they may have that right.”

SN&R PB – Was there any language in Justice Kennedy’s majority opinion that struck you? What did you think about Justice Kennedy’s analysis? Did you get the sense that this was building on his Romer and Lawrence decisions?

Prof. Leslie Jacobs:

“The reasoning is just straight Romer [v. Evans]. The Romer case talks about how you can’t just make a law against gay people because gay people are gay and people don’t like them. That seemed to shine through in this decision. When I teach it, I teach Romer and the City of Cleburne [v. Cleburne Living Center, Inc.], which has to do with a home for the mentally disabled, and the ‘I hate hippies’ case [Dept. of Agriculture v. Moreno, which held that Congress cannot enact legislation aimed at discriminating against a politically unpopular group, like hippies enrolling in the food stamp program.] The [Moreno] case is the one that deals with a federal statute, so it’s more on point than Romer or City of Cleburne. It seemed consistent with what he started out with in Romer.”

SN&R PB – Did you think the analysis in Justice Kennedy’s opinion swept more broadly than you were expecting?

Prof. Lawrence Levine:

“Justice Kennedy wrote a strong opinion with really beautiful language about how not recognizing these marriages after a state has given them a seal of approval [results in] what he calls ‘second-class marriages.’

He makes a really powerful point. He takes the harm to children, and mentions several times how what Congress did in DOMA injures children. It directly harms them when the second spouse dies, they don’t get the same benefits. But it also is demeaning because of the way people will look at that marriage.

I think it’s great. The trope for a long time by the opponents [of marriage equality] has been based heavily on protecting children. It started with the Massachusetts Supreme Court in Goodridge [v. Dept. of Public Health in 2003]. Suddenly the argument is the other way around: if you don’t recognize these relationships, or if you treat them as a second-class relationship, that demeaning treatment not only injures the couple, but it also injured those involved in it as children. The majority in Goodridge said that many gays and lesbians have children, and depriving them of marriage and the benefits of marriage harms the children of those relationships. It’s pretty powerful, and Kennedy seems to get that.”

SN&R PB – What legal challenges did the Supreme Court not resolve, and what issues can we expect to hear about in the coming years for marriage equality cases?

Prof. Lawrence Levine:

“One Justice Scalia brought up in his dissent, and he had several legitimate points. The argument in favor of DOMA, the so-called rational basis, was the federal government needs uniformity, and Congress opted for the traditional definition of marriage to further uniformity.

Now we don’t know what happens. Justice Scalia raises the [hypothetical] situation: What if a couple that is legally married in one of the baker’s dozen of jurisdictions that allow marriage equality moves to a state that does not recognize their marriage? They’ve moved from Massachusetts to Mississippi. They’ve certainly lost state benefits, but have they lost federal benefits too?

Justice Kennedy says his opinion only applies to legally married couples, but are they still legally married? There are lots of questions.

There’s a lot of language in Windsor, as Justice Scalia points out, that makes it harder for states to refuse to allow gay and lesbian couples to marry, even though that’s not the issue before the court. There’s a lot of good language about demeaning these couples in their relationships and the injury to their children. That applies not just to DOMA, but it applies to access to marriage.

People move a lot, so it’s going to be kind of a mess. This is a very expensive day for a lot of gay couples. I have friends, and it’s going to cost them a ton. In the past we were treated as separate, so one’s income could be much lower. For some people it’s going to be expensive. But that’s part of the deal, it seems, if you want the benefits, you have to take on the responsibilities.”