On October 18, a federal appeals court in Manhattan (the 2nd U.S. Circuit Court of Appeals) struck down in a 2-1 decision the 1996 Defense of Marriage Act, which is a federal law that defines marriage as a union that exists solely between a man and a woman. The case, Windsor v. United States, revolves around Edith Windsor, a woman who was married to her spouse, Thea Spyer, in Toronto in 2007 after 40 years of being together without a marriage. Spyer died in 2009 and named Windsor as the executor of her estate; however, Windsor was forced to pay more than $363,000 in estate taxes because U.S. federal law does not accord the same rights to same-sex couples as it does to opposite-sex couples. The 2nd Circuit Court saw this as a violation of the Fourteenth Amendment’s “Equal Protection Clause,” which states that “No State shall… deny to any person within its jurisdiction the equal protection of the laws.” The usual standard for judging Equal Protection cases that are not related to race or sex is the “rational basis test,” an interesting precedent set by a footnote in the Supreme Court case United States vs. Carolene Products Co. The most basic way to explain the test is as follows: states must have a rational basis for their discrimination against groups of people, and if they cannot justify their discrimination, their discriminatory laws must be struck down as unconstitutional.
Similarly, back in February 2012, the 9th U.S. Circuit Court of Appeals (in California) struck down California’s Proposition 8—a 2008 ballot initiative that amended California’s constitution to recognize only opposite-sex couples as legal—in a case formerly called Perry v. Brown and now named Hollingsworth v. Perry. The case was originally filed in 2009 on behalf of two same-sex couples, Kris Perry and Sandy Stier and Paul Katami and Jeff Zarillo, after both couples were denied marriage license. The 9th Circuit Court struck down Prop. 8 using the same Equal Protection reasoning that the 2nd Circuit Court would eventually use in Windsor v. United States.
Windsor v. United States was decided by the 2nd Circuit Court too recently to shoot straight to the Supreme Court for this 2012-2013 term, but Hollingsworth v. Perry petitioned the Supreme Court for a writ of certiorari on July 30, 2012. On September 5 the case was distributed for the Court’s September 24 conference and, interestingly, was re-distributed on October 29—two days ago!!—for the November 20 conference. At this upcoming conference, the Court will choose whether or not to hear Hollingsworth v. Perry and thus decide upon the fate of Prop. 8, and thus, on a broader scale, the fate of DOMA and marriage discrimination throughout the United States.
If they take the case, it will be a question of Prop. 8/DOMA’s constitutionality under the Fourteenth Amendment’s Equal Protection Clause, and that’s where things get tricky. The rational basis test is traditionally associated with liberalism, judicial activism, and the use of precedent over textual interpretation. The Court’s four liberals—Justices Ginsburg, Breyer, Sotomayor, and Kagan—will almost certainly find that the federal government has no rational basis for discriminating between same- and opposite-sex couples, and that Prop. 8 (and, applying their decision universally, DOMA) must be struck down. That’s how the ban on interracial marriage was lifted in the 1967 case Loving v. Virginia, and that’s how the Court has decided most of the Equal Protection cases in the past.
(Side note—one might try to argue that these cases are a question of biological sex, and thus the “intermediate scrutiny” test must be applied, because the cases involve two people of the same biological sex fighting to get married. I personally believe, though, that the non-biological-sex-related rational basis test applies here as opposed to biological-sex-related intermediate scrutiny because the discrimination taking place is rooted in one’s sexual preference, not one’s biological sex. For example, DOMA does not discriminate against women; it discriminates against individuals who identify as the same gender and want to get married to each other. Thus, under DOMA, some women are discriminated against, some men are discriminated against, and, because I go to Brown and this phrase is said constantly, some other genders on the nonbinary gender spectrum are discriminated against.)
The Court’s four conservatives—Chief Justice Roberts and Justices Scalia, Thomas, and Alito—certainly won’t find the “rational basis test” to be a valid argument, and it’s hard to say what everybody’s favorite swing voter, Justice Kennedy, will do. Therefore, the case needs to be decided on something stronger than the difficult-to-apply-uniformly, not-always-understandable rational basis test. It’s uncertain what that “something” will be, but it would be impressive if the Court could turn notorious homophobe Antonin Scalia’s originalism on its head and use it to justify same-sex marriage. In fact, I’ll try to do a very basic version of that right now by finding the original meaning of the words at the very time the Equal Protection Clause was written, and then applying that “original meaning” of the Clause to the situation at hand. In 1868, when the Equal Protection Clause was penned, the literal Webster’s 1844 Dictionary definitions of the key words that comprise the clause were as follows:
- Deny—“1. To declare a statement or position not to be true. 2. To refuse to grant; as, to deny [sic] a request. 3. Not to afford; to withhold; as, to deny [sic] aid.”
- Jurisdiction—“1. The legal power or authority of doing justice in cases of complaint; the power of executing the laws and distributing justice. 2. Power of governing or legislating.”
- Equal—“1. Having the same magnitude or dimensions; being of the same bulk or extent. 2. Having the same values. 3. Having the same qualities; as of equal [sic] density. 4. Having the same degree: as of rapidity. 5. Even; uniform; not variable; as temper.”
- Protection—“1. The act of protecting or preserving from evil, loss, injury, or annoyance. 2. That which protects or preserves from injury. 3. A writing that protects; a passport or other writing which secures from molestation. 4. Exemption, as from molestation or arrest.—Syn. Preservation; defense; guard; shelter; refuge; security; safety.”
Thus, using these original definitions, let’s put the Clause back together to figure out what it meant in 1868. Hmm… it seems to fall along the lines of “No State may, within its boundaries, ‘refuse to grant’ to one person the same defense, shelter, safety, security, or refuge of the law as that which another person also receives.” And, hmm, is the right of an opposite-sex couple to marry “defended” under the Proposition 8? YES! Judging by this original definition of the Equal Protection Clause, the right of a same sex couple to marry should also be defended under the California State Constitution! Wow, that was a lot less painless than I thought it would be.
That’s just one way of interpreting the situation, and I’m willing to bet that Scalia would call what I just did a perversion or misinterpretation of originalism. So, fine, Supreme Court, don’t use my theory. But please try not to use the rational basis test, either, because its vagueness will make it a lot easier for states to find loopholes and sneak their way around the constitutionality of same-sex marriage. And, Nine Justices of the Highest Court in the Land, no matter how you want to justify same-sex marriage as constitutional, you have to agree to hear Hollingsworth v. Perry before you can make any decision at all.
(But let’s be real, folks, we got over our stupid racial prejudices in the 1967 in a case that was long overdue and allowed interracial couples to marry. Donald Trump has had roughly 1,000 wives. Strangely, the marriage of an opposite-sex couple wherein the two participants are related by blood is legal in some states. It’s about damn time that same-sex become constitutional.)