Is DOMA Dead? An Amherst Expert Weighs in on the Future of Same-Sex Marriage

Submitted on Monday, 7/29/2013, at 10:31 AM

July 25, 2013

Professor Law, Jurisprudence and Social Thought Professor Martha Umphrey

On June 26 of this year, the Supreme Court of the United States (SCOTUS) made landmark decisions in two cases related to same-sex marriage: United States v. Windsor and Hollingsworth v. Perry.

The former case concerned Edith Windsor and Thea Spyer, who were married in Canada in 2007. Their marriage was then recognized by New York State. In 2009, Spyer died, leaving her estate to Windsor, who claimed federal estate-tax exemption for surviving spouses. Her claim was denied under Section 3 of the Defense of Marriage Act (DOMA), which stated that “spouse” applies only in marriages between a man and a woman. Windsor then filed a lawsuit against the federal government. In a 5-4 decision, SCOTUS declared Section 3 of DOMA unconstitutional.

In the latter case, the court struck down Proposition 8, which had prohibited same-sex marriages in California. Such marriages are now legal throughout the state.

Marriage-equality advocates see the court’s rulings as milestone victories, but what exactly do they mean for the future of same-sex marriage in the U.S.?

Brianda Reyes ’14 from Amherst’s Office of Public Affairs spoke with Martha Umphrey, professor of law, jurisprudence and social thought, who has given lectures on same-sex marriage at Amherst. Umphrey is currently working on a piece concerning the U.S. v. Windsor case.

Could you briefly describe the SCOTUS decisions and what they mean for same-sex couples?

In Hollingsworth v. Perry, the Supreme Court ultimately let stand on procedural grounds a federal district court ruling invalidating California’s Proposition 8.  Proposition 8 was a referendum passed by voters in 2008 that amended the California constitution to restrict marriage to opposite-sex couples.  Attorneys David Boies and Theodore Olson, who are ideological opposites, challenged Proposition 8 on the grounds that it violated equal-protection and due-process guarantees. State officials refused to defend the law, so backers of Proposition 8 took that task on. Ultimately, though, the Supreme Court decided they lacked standing to defend the law, which in turn left the Federal District Court’s ruling invalidating Proposition 8 intact. In deciding the case on narrow grounds, the Supreme Court declined to answer the broader question raised by the case: whether any state ban on same-sex marriage violates the federal Constitution. 

U.S. v. Windsor was a case in which one part of the 1996 Defense of Marriage Act was challenged. The court ruled that the federal government may now not discriminate against same-sex couples who have been lawfully married in states that allow same-sex marriage.

In practice, what that means is that the thousand-plus statutes implicating marriage at the federal level must now apply equally to married same-sex couples and opposite-sex couples. Statutes governing social security, inheritance taxes, income taxes, health care and the like now all need to be reviewed and applied equally to same-sex couples who are already lawfully married.  Reinterpreting those statutes is a complex process, though. Some laws, for example, define lawful marriage in relation to the state in which the marriage took place, while others define it in relation to the state in which a couple is domiciled. It’s also not entirely clear how the Windsor case will affect various federal immigration benefits accorded to same-sex spouses who are non-U.S. citizens.

It’s important to note that the [Windsor] decision is, in some ways, quite narrow. It does not apply to couples that are not lawfully married and does not require all states to recognize same-sex marriage. Yet I think the importance of the decision lies in the broad sweep of the majority opinion’s rhetoric. Even though the holding does not grant federal recognition to same-sex marriage as a fundamental right, nevertheless Justice Kennedy’s language suggests there is something fundamental about according dignity to same-sex couples and their children. That language can be used by advocates to challenge other state statutes that discriminate against same-sex couples.

What are the next steps for same-sex-marriage advocates?

The approach, as I understand it, will be to return to states that don’t yet recognize same-sex marriage and challenge those statutes and state constitutional amendments in court, as well as to advocate in front of those few legislatures that haven’t taken a position on this issue one way or the other.  At present, 31 states have amended their constitutions to require that marriage be limited to only one man and one woman. In those cases, the legislature has already made a decision, and it’s hard to undo those amendments. Soon, in 13 states, same-sex couples will be able to be lawfully married. That doesn’t leave a lot of states in play. Advocates may go to those states—Pennsylvania, New Jersey and the like—and try to persuade their legislatures to recognize same-sex marriage, or they may use the Windsor decision and the broad rhetoric in it to challenge those statutes and constitutional amendments in federal court. To the extent that they do that, the goal is to produce a higher number of states that recognize same-sex marriage, so that when the next challenge to DOMA—and, more generally, to a lack of federal recognition of same-sex marriage—comes before the Supreme Court, three or four or five years from now, they’ll be able to show a trend in favor of greater acceptance. I think that’s an important feature for this court when it faces the larger question, and it inevitably will, which is whether any restrictions on same-sex marriage are unconstitutional.

I think it’s important because, as many commentators have noted, there are some justices that worry about the Supreme Court stepping too far ahead of public opinion in this area. They look back to the 1973 Roe v. Wade decision as a cautionary tale. Then, advocates were trying to overturn state anti-abortion laws. Some states had loosened restrictions on abortion. The court decided that the right to choose an abortion was a fundamental right under the right to privacy. It caused such a sharp public backlash against abortion rights that the conflict has carried forward up to this day. I think some justices, perhaps even Justice Ginsburg, are worried about repeating that mistake and are hoping to see more movement in legislatures and in states before finally recognizing same-sex marriage as a fundamental right. 

In the long run, though, I do believe same-sex marriage will be made legal in all 50 states one way or another. Other countries, in Europe and Latin America, have already recognized it on a national level. The legal confusion caused by a patchwork of recognition and nonrecognition across the states is profound. And ultimately, public acceptance of same-sex marriage will continue to grow as younger, more liberal voters replace those of earlier generations. 

There are now 13 states in which same-sex marriage is legal. That’s over a fourth of the states. What do you think that says about the current political climate and public perception of same-sex marriage?

I think the trend toward acceptance of gay men, lesbians, bisexuals and transgender people generally, and same-sex marriage in particular, has been at a remarkably fast pace. Historically, it’s clear that it can take decades for public opinion to change on civil rights questions and move in the direction of accepting and tolerating social differences. What we have seen in the last 10 or 15 years is an enormous change in public opinion in this issue. You can see it not just in the area of legislation but also in popular culture. At least as important: as more and more people have come out, many straight folks have seen that they know [and] love people who are gay. It’s really influenced the climate in which these challenges are brought.

What do the decisions in the Windsor case say about this trend toward acceptance?

The rhetoric in the Windsor opinion, in particular, to me does signal a tipping point in the direction of acceptance of same-sex marriage and being gay more generally. In Justice Scalia’s dissent, he expresses, in essence, disbelief that ideas and values that he believes to be important and legitimate—in his own mind and for many people in this country—now seem to be discredited as a form of bigotry. He says in pointed language that people of good will can differ on this question and criticizes the majority opinion’s rhetoric for rendering his position so outside the pale that it appears to have lost its legitimacy. To me, this kind of conflict is a symptom of hitting a tipping point.

It’s similar to the kinds of things that happened in the 1960s in the area of civil rights for African Americans. Loving v. Virginia, for example, was a 1967 decision in which the Supreme Court declared state statutes prohibiting interracial marriage unconstitutional. That is a moment where you can see a shift toward the opinion that racism was no longer tolerable in polite company. You couldn’t be an overt racist and call yourself a legitimate member of a political community. I think that’s the nerve that the majority opinion touched in Justice Scalia, to the extent that his outrage is about having his point of view rendered illegitimate. It signals a sense that acceptance [of LGBTQ people] is now becoming the norm—though, of course, the Windsor decision is controversial, and debate about same-sex marriage will remain heated for some time to come.

How close were you to the case? Did you have any insider knowledge or insight?

I followed this litigation pretty closely. I’ve taught about it, particularly the Proposition 8 case, reading the trial court opinion with some of my classes. The DOMA challenges, I’ve also been following. I certainly know people who can and will now be married in California because of the Hollingsworth v. Perry decision.

I was also in contact with some legal scholars right before the decisions were handed down. When we figured out who was writing each of the opinions, guesses about the decisions were pretty accurate. Once we learned that Justice Roberts would write the Proposition 8 case, people thought it would be decided on the standing issues, because they saw him as wanting to rule on fairly narrow technical grounds.  Knowing that Justice Kennedy wrote the Windsor case suggested, because he’s written two other major opinions in the gay-rights arena, that the outcome would be favorable to advocates of same-sex marriage in one form or another.

What are you currently working on?

I am working on a piece on same-sex marriage, but from a slightly different angle. I sat in on a murder trial in Northampton this past spring in which a woman murdered her wife. I was very interested to try to think about the ways in which this assimilationist rhetoric that you see in the constitutional challenges—that same-sex families are just the same as opposite-sex families—is put under pressure in other contexts. A murder trial poses an extremely different forum for thinking about same-sex marriage than Supreme Court arguments and constitutional rhetoric. I was curious to see whether the template of heterosexual marriage, and particularly violence in marriage, fit or didn’t fit in this trial context.

I’m also going to write a short piece on the Windsor decision, to think about this question of a cultural tipping point and what the rhetoric of the decision means.