Next week, SCOTUS is likely to strike down the Defense of Marriage Act when it considers two cases involving California’s Prop 8 and federal tax implications on same-sex marriages. Below is a brief synopsis of each case followed by a short discussion of possible consequences and an interesting argument as food for thought.
SCOTUS will hear two cases, the first being Hollingsworth v. Perry. The parties, same-sex couples challenge the voter initiative Prop 8’s constitutionality. California had allowed same-sex marriage and had issued marriage licenses to couples until Prop 8 was passed, amending the California constitution to define marriage as between opposite sexes. Marriage licenses were then no longer issued, leaving same-sex couples without the ability to be married, while some had gotten licenses before Prop 8 was passed.
At the core of the case is whether the Equal Protection clause allows rights to be given (pre-Prop 8) and whether those rights can then be taken away (Prop 8) and for what reason would justify the deprivation of rights.
The Equal Protection clause allows for discrimination between individuals if a state actor can show the requisite justification. SCOTUS has set different standards for states of the federal government by the type of discrimination that is involved. For example, discrimination based on race has the highest level of scrutiny and requires a state to show a state interest. Other types of discrimination deserve lesser standards of review, such as intermediate scrutiny for gender-based discrimination with the caveat that the discrimination cannot be based on archaic stereotypes of gender roles.
The second case, Windsor v. United States, challenges DOMA by taxing the surviving spouse ‘s inheritance at a rate higher than if the couple were married. The catch is: the coupe was. Under New York law, the couple had married and the spouse had died, willing his inheritance to his surviving same-sex spouse. DOMA disallows the federal government to recognized any marriage that is not between a man and a woman and taxed the inheritance at a higher rate.
The question is whether the federal government can show a substantial government interest in taxing the couple at a different rate.
Although rulings will not be expected until at least June, implications may become apparent much sooner. State politicians may react by either defining marriage (or redefining it,) or Congress may step in and try to enact different legislation that will try to effectively limit the rights of same-sex couples having marriage licensees from the handful of states that grant them.
Now that the debate over same-sex marriage may be at its end legally speaking, the moral debate will likely be revived. That might be harsh language considering the moral arguments having never really died off, but the legal debates have seemed to be the spotlight.
One interesting perspective, a slippery slope argument, makes the insightful prediction that the legal battles for same-sex marriage may make way for the legal arguments for polygamy and other moral depravity. The author, a law student at Yale, I think, made the argument in a law review article, which I would love to track down again. The argument goes like this: same-sex advocates have made the Equal Protection argument and have urged advocates not to get into the morality of homosexuality. By avoiding the morality, advocates have a better chance at winning in the courtroom and avoid instigating inflammatory rhetoric outside it. Now, imagine years from now polygamists making this claim that we should ignore the morality of such conduct and argue the state should allow for such marriages on constitutional principles.
It’s an interesting argument and what might be even more captivating is if decades from now polygamists get their day in court.
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