The Supreme Court’s decision the Federal Defense of Marriage Act (“DOMA”) probably means the end of the ban on same sex marriages in Ohio. Sooner rather than later.
Justice Kennedy, writing for 1 5-4 Court majority, found that the DOMA violated the dupe process guarantees of the constitution. This opinion will likely form the basis of successful court challenges to Ohio’s constitutional provision that prohibits same sex marriage. The decision on the California case on the procedural standing issue doesn’t change anything.
The rulings leave in place laws banning same-sex marriage around the nation, and the Court declined to say whether there was a constitutional right to same-sex marriage.
We checked in with our Supreme Court attorney-expert. (The same attorney who correctly warned us not to panic after the Affordable Care Act arguments.) He explained that the conventional wisdom is that Court’s two same sex marriage decisions could be read to suggest that the Supreme Court was not ready to “impose” same sex marriage on all of the states. “This reading is wrong, in my opinion,” he said. He went on (with the warning that these are preliminary thoughts):
Back in March after oral arguments, I suggested that the procedural issue – standing – was a serious issue that the Supreme Court could likely rule on. [Read his comments here.] This was not a dodge of the issue, but a real bar to the lawsuit being decided in the Supreme Court. My read of the broad language from Kennedy in Windsor and the harsh dissent from Justice Scalia suggests that the Court would like to reach the merits of the issue of whether states can prohibit same sex marriage sooner rather than later.
So what does the decision on DOMA mean for Ohio?
First, Section 2 of DOMA, which has not been challenged before the Supreme Court, allows States to refuse to recognize same-sex marriages performed under the laws of other States. This means that if a same sex couple married in California, for example, who move to Ohio may not have their marriage recognized. The Windsor decision calls this provision into question.
Section 2 of DOMA will probably be struck down by a court soon. When that happens, we expect same sex couple who were married in other states to seek Ohio to recognize their marriage. The Federal Constitution requires states to give “full faith and credit” to marriages from other states. There are some exceptions, but without DOMA those exceptions are harder to apply.
Second, everything Justice Kennedy wrote about DOMA would apply to the Ohio Constitutional provision that prohibits same sex marriage. While he wrote about Federalism and the traditional role of states to define marriage, his language strongly suggests that a majority on the Court would find that the ban on same sex marriage is unconstitutional.
Justice Kennedy described DOMA as depriving “same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages.” The same can be said in Ohio, as lost of state rights depend on a person being married. In State v. Carswell (a case where the Ohio Supreme Court held that the Ohio constitutional amendment that banned same sex marriage did not invalidate the state’s domestic violence laws) the Ohio Supreme Court said, “Marriage gives individuals a standing before the law. Being married gives a person certain legal rights, duties, and liabilities. For example, a married person may not testify against his or her spouse in some situations. R.C. 2945.42. A married person may inherit property from a spouse who dies intestate. R.C. 2105.06.”
Justice Kennedy also said that the “avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages . . .” Again, the same can be said about Ohio’s ban on same sex marriage. This is what Justice Kennedy means when he writes about the “equal dignity of same-sex marriages.” He continued: “DOMA writes inequality into the entire United States Code.” Again, the same is true in Ohio, as the constitutional amendment writes inequality into the Ohio Constitution.
To remove any confusion, Justice Kennedy emphasizes that the “moral and sexual choices” of same sex couple are protected by the Constitution. The constitution prevents the government from burdening the lives of same sex couples “in visible
and public ways” and that “ The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.”
The best proof that we are reading the opinion correctly in this broad way is the dissents of Chief Justice Roberts and Justice Scalia. The Chief Justice tries to limit the opinion to states that already recognize same sex marriage by suggesting that it is “undeniable that its judgment is based on federalism.” Nice try! Why else is Justice Scalia is apoplectic? Scalia tries to suggest that “the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.” However, he doesn’t have four other justices joining him in this view.
Our Supreme Court attorney-expert agrees. “If someone challenges a state same sex marriage ban, like the Ohio constitutional amendment, “ he says, “the Supreme Court is ready to strike the ban down. I wouldn’t have thought this yesterday, but it seems obvious that the votes are there.”
Now we just need someone to act – the Courthouse is open!