Muddied waters

Following the Supreme Court’s rulings on gay marriage, the American Civil Liberties Union has begun filing lawsuits—many lawsuits.

With a swell from the legal victory in the United States v. Windsor under its wings, the ACLU has filed suits against traditional marriage laws in Pennsylvania, Virginia, and North Carolina. It also recently celebrated legal victories in Michigan as two cases go forward there. And the group is pursuing cases in New Mexico and Illinois.

The ACLU said it is working to “improve the map of the country,” and hopes by the end of 2016 to add seven states to the 13 that currently allow gay marriage.

When Justice Anthony Kennedy issued his ruling in Windsor at the end of June, striking Section 3 of the Defense of Marriage Act, he based his argument in part on state sovereignty. But he talked enough about DOMA as a discriminatory law to give lower judges reasons to strike state laws on that basis.

The seemingly contradictory opinion caused Justice Antonin Scalia to complain in his dissent, “If this is meant to be an equal protection opinion, it is a confusing one.” Scalia—perhaps correctly—predicted that courts would begin tossing out state laws using Kennedy’s line of reasoning.

“The real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘bare … desire to harm’ couples in same-sex marriages,” he wrote. “How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”

Lower judges are likely to continue to disagree about the interpretation of Kennedy’s ruling: Did he mean his opinion to be more an affirmation of states’ rights or gay rights? The high court could hear other state-level cases if they are challenged on constitutional grounds. Otherwise challenges to state laws will end in state supreme courts.

A Michigan judge in early July issued a preliminary injunction against the state’s policy that provides benefits to heterosexual married spouses, based in part on the DOMA decision. Another judge allowed a lawsuit to proceed against the state’s constitutional amendment that defines marriage as between a man and a woman, also based in part on DOMA. In Illinois, the ACLU asked a court to expedite its ruling on a pending case, also citing DOMA.

Peter Breen, a lawyer with the Thomas More Society, has been defending the Illinois law, but his firm is using the DOMA decision as an argument in favor of the state’s traditional marriage law. He said the ruling “reaffirms strongly that states have the right to define marriage as they see fit.” He points out that Kennedy was clear that his opinion only applied to states that had already legalized same-sex marriage.

“If Justice Kennedy was ready to overturn the marriage laws in 40 states, this would have been the case to do it,” Breen said. “If the court wanted to force same-sex marriage on the states, it could have done so through the Windsor decision. If there were five votes for that, it would have happened. Period.”

Breen acknowledges, “Look, it’s not a good decision,” but said it doesn’t mean state laws are invalid. He’s defending the Illinois law because the state attorney general has refused to defend it. Pennsylvania’s attorney general also recently decided she wouldn’t defend the state’s traditional marriage law.

This has become a problem, especially after the Supreme Court’s ruling on California’s Proposition 8. The court dismissed the Prop 8 case on standing issues, saying once California state officials decided not to defend Prop 8 in court, the taxpayers who took up its legal defense had no standing.

“As long as there’s a government official to defend the law, that makes it a lot easier,” Breen said with a quick laugh. Breen, designated as a special assistant state’s attorney to defend Illinois’ law, doesn’t expect to face the standing issues that took down Prop 8—because for this case he is a commissioned state official, not a taxpayer. The legal minutiae are important in whether these laws survive.

Meanwhile California courts are still trying to figure out whether the Supreme Court’s ruling means the state can issue marriage licenses to same-sex couples. California state officials declared after the ruling that state clerks could begin issuing marriage licenses to same-sex couples. But the details are more complicated.

Technically, after the Supreme Court said California taxpayers had no standing, the only valid ruling on Prop 8 was at the district court level. That would mean that only the gay couples in that district-level case would qualify for marriage licenses. But state officials argued that based on the district-level decision, they have the power to order clerks to issue same-sex marriage licenses across the state.

The clerk of San Diego County has challenged that reasoning, asking the state supreme court to clarify where clerks stand. The clerk, Ernest J. Dronenburg Jr., argues that the district-level ruling doesn’t apply to him, and Prop 8 should still be the law until higher courts decide the issue. The backers of Prop 8 have made a similar argument in a separate challenge to the state’s decision to issue same-sex marriage licenses.

Richard Garnett, law professor at Notre Dame University, has deep concerns about the implications of both of the Supreme Court’s marriage decisions, but he said these legal squabbles will continue for the time being.

“Until the Supreme Court hands down a ruling that same-sex marriage is constitutionally required, many states will retain their traditional legal definitions of marriage,” he said. “In some states, legislatures will adopt, or state courts will require, revised definitions of marriage, but in many others, the revision will not come unless and until it is required by the [high] court.”