Diana Richmond on Hollingsworth v. Perry and U.S. v. Windsor: After Jubilation, What?

Last month, as a result of the decision of United States District Court Judge John E. Jones III in Whitewood v. Wolf, 2014 U.S. Dist. LEXIS 68771 (M.D. Pa. May 20, 2014), [enhanced version available to lexis.com subscribers], the State of Pennsylvania became the 19th state to recognize same-sex marriage. Later this month we will reach the one-year anniversary of the historic decisions of the United States Supreme Court that opened the door for rulings such as Whitewood.

The United States Supreme Court removed two major barriers to marriage equality with its decisions last June in Hollingsworth v. Perry, 186 L. Ed. 2d 768 (U.S. 2013), [enhanced version available to lexis.com subscribers], and United States v. Windsor, 186 L. Ed. 2d 808 (U.S. 2013), [enhanced version available to lexis.com subscribers]. California certified family law specialist Diana Richmond discusses the Hollingsworth and Windsor decisions and their implications in this insightful commentary.

Excerpt:

The Hollingsworth decision rests solely on standing. No analysis of the underlying issues or the justices' views on them are to be found in this decision, authored by the Chief Justice. That analysis and those views – for at least some of the justices – are revealed in detail in the companion Windsor case, and one must read them together to get a full understanding of what the Court would and would not do. In Hollingsworth, the Court ruled that the Proponents of Proposition 8, who wanted to limit marriage to opposite-sex couples, lacked standing to appeal from the District Court decision. That decision effectively limits its effect to California. Windsor, by contrast, affects the whole country. In Windsor, the Supreme Court struck down the provision of the Defense of Marriage Act (DOMA) that limited marriage for purposes of federal benefits to marriages between a man and a woman. Thus, under Windsor, same-sex couples whose marriages are recognized as legal will be entitled to the full panoply of more than 1,000 federal benefits that apply to married couples. Justice Kennedy, writing for the majority in Windsor, described DOMA: "This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple ... and it humiliates tens of thousands of children now being raised by same-sex couples." He elaborated further on the harms to children of DOMA, a concern foretold by his question at oral argument about the effect of DOMA on some 40,000 children of same-sex married couples across the nation.

Neither decision recognizes marriage for same-sex couples as a right protected by the U.S. Constitution. Hollingsworth was originally brought for this purpose, and its devolution into a decision on standing appears to have been a strategic 'safe harbor' created when the plaintiffs' trial court victory was appealed by the Proponents of Proposition 8. Though the original plaintiffs argued at both the Ninth Circuit and Supreme Court level that the fundamental right of marriage cannot constitutionally be denied to same-sex couples, they also asserted that the Proponents lacked standing to appeal. Much of the argument at both appellate levels was devoted to standing. When Hollingsworth (then known as Perry v. Schwarzenegger) was first filed, many supporters of marriage equality worried (justifiably) that taking this issue to this Supreme Court was highly risky. As discussed below, some of the dissenting opinions in Windsor reveal the reality of this risk. However, what most people did not anticipate was the groundswell of public support across the nation for the cause of marriage equality. That forward momentum may be the real accomplishment of the Hollingsworth case, but it remains to be seen how durable it will be as campaigns are waged across the country to carry marriage equality to other states. California now joins Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, and the District of Columbia in granting marriage rights to same-sex spouses.

Had the Court found standing and upheld the Ninth Circuit decision that marriage could not be denied where a state had already granted significant marriage benefits to registered domestic partners, the decision would have affected those states in the Ninth Circuit where domestic partnership is already recognized. Had the Court found standing and ruled on the merits, it could have found any of the following: that denial of marriage to same-sex partners violates the U.S. Constitution (it was apparent from both the oral argument and the dissenters in Windsor that a majority was not to be found on this decision); that denial of marriage to same-sex partners is a province of the several states and not a denial of the federal Constitution (this would have had repercussions for the decision in Windsor); or that the limited ruling of the Ninth Circuit would be upheld. The justices faced somewhat of a dilemma in ruling consistently in both cases, which brings us to a consideration of standing.

    Diana Richmond, a California certified family law specialist, is a partner at Sideman & Bancroft LLP in San Francisco. She is a co-editor of Kirkland, Lurvey, Richmond & Wagner, California Family Law Practice & Procedure (LexisNexis) and a contributing editor to California Family Law Monthly (LexisNexis). She has authored or co-authored amicus briefs in support of the right to marry for same sex couples in Maryland, California (The Marriage Cases), and Iowa, and in Hollingsworth v. Perry at the District Court, Ninth Circuit, and Supreme Court levels.

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