The U.S. Supreme Court will issue two rulings this week addressing the civil rights of gay and lesbian Americans. Neither the law nor justice have much predictive force with this Supreme Court, but there is some consensus among veteran court watchers and civil rights activists that the Court will overturn the Defense of Marriage Act (DOMA), thereby entitling legally married gay and lesbian couples to over 1100 federal rights and benefits already enjoyed by legally married straight couples. How the Court will rule on the Prop 8 case ― in which, to put it simply, the issue is whether the civil rights of a minority group can be determined by popular vote ― is anyone’s guess.
To those who would celebrate the Court’s affirming the Ninth Circuit’s decision that California’s Prop 8 was unconstitutional or the Court’s declining to reach a decision at all (leaving the Ninth Circuit decision in place), allow me to deflate your victory balloons. While good news for those residing permanently in California and other states recognizing gay marriage, such a decision ― when read together with a favorable DOMA decision ― would result in legal and economic chaos. Because a couple’s marital status for federal purposes is generally determined by their marital status in their state of residence, a gay couple marrying, for example, in California but relocating to a state not recognizing gay marriage would suddenly find themselves single again and no longer entitled to social security death benefits, marital estate exemptions, spousal immunity privileges, and myriad other federal rights and benefits. Such irrational and discriminatory consequences will cause hardship not only for the individuals involved, but potentially for corporate employers that may wish to relocate employees for rational business reasons.
Historically, the Court prefers to issue as narrow a ruling as possible, under the doctrine of constitutional avoidance. If it chooses to follow that doctrine in this case, it would preclude a decision requiring a national right to gay marriage. That there is such a right, however, should have been long ago settled, as articulated in 2003 by Justice Scalia, of all people, in his dissent in Lawrence v. Texas objecting to invalidation of state sodomy laws as unconstitutional. Scalia protested that the case “dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.” Oh, that we should be so lucky that the Court will heed Scalia’s logic and rule in a Loving fashion.