Dissecting the decisions

Posted: June 28th, 2013 | Columns, Featured, Legally LGBT | No Comments

Paul McGuire | Legally LGBT

In August 2010 when Proposition 8 was declared unconstitutional by Judge Vaughn Walker, I could barely admit that I had voted no on the proposition. I wouldn’t come out until a year later. By the time the Ninth Circuit affirmed the decision and agreed that Prop 8 was unconstitutional in February 2012, I had begun following LGBT advocacy groups and met my current boyfriend.

Paul McGuire

Paul McGuire

Since then, I participated in a rally for marriage equality on the day the Supreme Court heard oral arguments in the Prop 8 case, and I have been eagerly awaiting a decision from the Court in the marriage-equality cases, both for my own personal interest and out of a hope to see positive change in the way this country treats LGBT individuals and couples.

On Wednesday, June 26, the Supreme Court declared the Defense of Marriage Act (DOMA) unconstitutional and declined to decide whether Prop 8 is constitutional, finding instead that the proponents lacked standing to bring it to the country’s highest court. Significantly, both opinions were announced exactly 10 years after the Court decided in Lawrence v. Texas that it is unconstitutional to criminalize same-sex sex practices.

For this column, I will refer to the DOMA case as Windsor and the Prop 8 case as Perry, in reference to the way the Supreme Court titles the opinions.

The decision in Windsor, written by Justice Kennedy, is supported by powerful language explaining how DOMA improperly creates two classes of marriages by denying federal recognition of same-sex married couples. “The avowed purpose and practical effect of [DOMA] are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states,” he wrote. Additionally, “DOMA writes inequality into the entire U.S. code.”

While I applaud the broad effects of the Windsor case, I am troubled by the lack of clear explanation of how the majority reached its conclusion. It suggests that DOMA presents specific problems with its wide reach that authorize the Court to ignore typical rules of standing. The majority also fails to clearly specify how it reached the result that DOMA is unconstitutional.

The decision ignores the question of which level of scrutiny to apply and jumps around between arguments of state’s rights and arguments that those who supported DOMA initially were motivated by animus. This leaves us with another vague opinion in line with Lawrence v. Texas. Like Lawrence, Windsor leaves lower courts without clear guidelines for how to approach a similar case in the future.

The dissents, authored by Scalia, Roberts and Alito, criticize the majority for stepping into a case best reserved for resolution in the political process. Scalia warns that the majority’s decision creates a “black-robed supremacy” that infringes on the right to self-rule and the powers of other branches of government. Scalia’s warnings might be more persuasive had he not supported expanding the reach of the Court when he struck down the Voting Rights Act one day earlier.

The decision in Perry, written by Chief Justice Roberts, never reaches the question of whether Prop 8 is constitutional because the majority agrees that the initiative proponents do not have standing. Thus, the proponents did not have standing to appeal to the 9th Circuit in the first place and were not properly before the Supreme Court.

According to the majority, once Prop 8 became a constitutional amendment the proponents lost their status as uniquely situated parties with an interest in the outcome of the case. Instead, their interest became equal with all other Californians who have an interest in seeing state laws comply with the United States Constitution.

The dissent, written by Justice Kennedy, argues that to deny initiative proponents of the ability to defend initiatives leaves state officials with the power to kill initiatives with which they don’t agree. The California initiative process exists precisely because the people of California don’t trust their officials to properly defend their interests. In order to prevent the result the majority reaches, California law authorizes initiative proponents to defend initiatives when state officials decline to do so. However, the majority limits this authorization to cases brought in state court.

DOMA’s defeat is important but only the first step on the way to true federal equality for same-sex couples. Until same-sex married couples are treated as married in all states, we are not yet truly recognized.

The Supreme Court’s decision in Windsor is nonetheless monumental because it wasn’t long ago – merely 16 yeas since 1996 – that DOMA passed through the House and Senate by a wide margin. The Supreme Court’s decision both recognizes the realities faced by same-sex households around the country and confirms well-established constitutional principles of equality before the law.

After the Perry decision was issued, Gov. Jerry Brown said marriage licenses should once again be issued in California as soon as the Ninth Circuit lifts the current stay. It is unclear how long it will take for this to happen – some say up to 25 days – but we will likely see marriage licenses issued by August.

—Paul D. McGuire is an openly bisexual family law attorney in San Diego who assists families dealing with dissolution of marriage and domestic partnerships. He writes a blog on family law and LGBT issues at

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