States still define marriage

No matter how you feel about same-sex marriage, you could call last week's U.S. Supreme Court rulings a victory for states' rights. In the end, that's what the Supremes focused on, declining to make law on the underlying issue of marriage. Of course, that's simplifying 100-plus pages and differing opinions of nine justices.

Hit the highlights: Marriage is still up to states, who are the only ones entitled to defend their laws.

Court decisions are limited to facts and issues presented by the parties of each case. The big two decided last week came out of New York (Windsor v. U.S., an estate tax challenge) and California (Hollingsworth v. Perry, California's marriage referendum). The latter they bunted; we'll get to that later.

In Windsor the Court held that state law defining marriage can't be trumped by the federal Defense of Marriage Act ("DOMA" enacted in 1996). DOMA applied more than 1,000 federal laws from taxes to loans, healthcare to immigration and beyond. DOMA federally defined "marriage" as man plus woman, period. Well, until June 26, 2013.

I could write lofty volumes about the Equal Protection Clause and the Fifth and Fourteenth Amendments, about jurisdiction and separation of powers, and how these decisions considered them all. But laws are really about people.

Long-time New York residents Edith Windsor and Thea Speyer had been together more than 40 years when Thea died in 2009. New York is one of 12 states (and D.C.) which allow same-sex marriage, so it recognized their 2007 marriage in Canada. Edith, in her 80s when Thea died, inherited the estate. Because DOMA denied their marriage federal recognition, the IRS said Edith wasn't entitled to the "spousal" exemption and made her pay more than $300,000 in estate taxes.

So with this state-federal conflict, she sued for a refund.

The Supreme Court, citing a long tradition of states' rights to control domestic matters, held that it wasn't for the federal government (i.e., Congress by enacting DOMA) to overrule New York's definition of marriage. That's up to New York. And Idaho. And California...

They also pointed out that DOMA wasn't just a disadvantage for estate taxes in a same-sex marriage, but also an unfair advantage at other times. Examples included students whose "spouse's" income must be considered for loan and grant eligibility. No "spouse" means less income considered, which means more federal aid. DOMA's effect also exempted these unions from certain public ethics and conflict-of-interest protections.

For children, the court called DOMA "humiliating." They said it sends kids the message the government doesn't recognize their families. They also mentioned the harm of unequal application of family kidnapping laws and denials of Social Security death benefits.

"DOMA writes inequality into the entire U.S. Code" and "imposes a disability on a class by refusing to acknowledge a status a state finds... proper," wrote Justice Kennedy.

So as of today marriage means whatever each state says it means. Within U.S. constitutional limits of course, which in the past have rarely interfered with state marriage laws. Allowing biracial marriage was one constitutional exception. Wish kids were; in New Hampshire a child of 13 can marry (with parent consent).

Change may happen indirectly. The Hollingsworth case was a challenge to Proposition 8 - a popular referendum amending California's constitution and redefined marriage as man-plus-woman. That referendum came in reaction to a California state court decision, holding that the amendment limiting marriage violated its constitution's equal protection clause. After the referendum, several couples wishing to marry appealed to federal court in the Ninth Circuit (Idaho is also in the Ninth Circuit, but that decision is only suggestive elsewhere, not binding). The federal district judge agreed that Prop 8 violates the U.S. Constitution's Fourteenth Amendment.

The State of California chose not to appeal. So the referendum advocates did.

What did the Supremes do? They said, "We can't decide this." Why? Because the referendum folks don't have "standing." They aren't the proper parties to complain, because a common citizen can not act on a state's behalf to defend its laws. Only state officials can.

Given the nationwide debate and the increases in same-sex marriage laws, here's what I find interesting about the Prop 8 case: It sets a limit while affirming state authority. Sure, they bunted on a technicality. But what the Supremes did confirm - as they have said before - is that neither groups behind popular initiatives nor average citizen can defend a state law in federal court "for the vindication of value interests," however brought about. If, as in the California case, the governor or attorney general declines to litigate further, the case is done.

The issue isn't. The debate rages on, one state at a time. What the divided Supremes (they're often divided on big issues) will do with a direct constitutional marriage challenge by the "right" parties, we don't officially know. DOMA was held unconstitutional on the 10th anniversary of their groundbreaking Lawrence ruling, which invalidated sodomy laws as applied to consensual acts (regardless of gender). They do like to hint.

Sholeh Patrick, J.D., is a columnist for the Hagadone News Network with degrees in law and international studies. Contact her at [email protected].