Still Two Americas for Same-Sex Couples

Despite the historic Supreme Court decision overturning DOMA, there are still classes of homosexual couples in this country. Law professor Douglas NeJaime on what comes next in the legal fight for full equality and recognition.

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The U.S. Supreme Court’s decisions on same-sex marriage represent landmark victories for the LGBT-rights movement. Same-sex couples in California will once again have access to marriage. And along with couples in the 12 states already in the marriage-equality column, they will receive the federal rights and benefits that married couples enjoy. For same-sex couples in the vast majority of states, however, the decisions will have little direct impact. These couples will continue to confront the same hostile laws. They cannot marry. In fact, most possess no relationship-based rights whatsoever. Even outside relationship recognition, the legal landscape looks bleak. If one of them has a child from a previous heterosexual relationship, unsympathetic courts may essentially force them to choose between their same-sex partner and their child. For same-sex couples raising their own children, a breakup with one’s partner may mean a breakup with one’s children. Without second-parent adoption rights or the parental presumptions that spring from marriage, the nonbiological parent may find herself a legal stranger to her own children. Discrimination continues when these couples go to work. Federal law and the laws of most states provide no protection against sexual-orientation discrimination in employment.

The Supreme Court’s decisions do nothing to directly address these harms. In Hollingsworth v. Perry, the court avoided any ruling on the constitutionality of state marriage bans. In United States v. Windsor, the court struck down Section 3 of DOMA, but did not apply any heightened constitutional standard that would render other discriminatory laws immediately suspect. By dramatically improving the situation for those same-sex couples living in the most progressive states, the court’s decisions widened the chasm between the haves and the have-nots in the LGBT population. How, then, will we eventually achieve one lesbian and gay America?

Marriage cases are pending in the federal courts. In the Ninth Circuit alone, two cases involve states that provide nonmarital recognition to same-sex couples—Nevada through a domestic-partnership law and Hawaii through a civil-union statute. With DOMA’s demise, couples in these cases can now demonstrate more than dignitary harm. Suddenly their states are effectively keeping federal benefits out of reach.

More cases are sure to follow. Some might emerge as married same-sex couples move around the country. Which federal rights and benefits they retain and which they lose may largely depend on whether their new state recognizes their marriage. Social Security benefits, for instance, turn on the couple’s domicile; to be eligible, couples must live in a state that treats them as married. And with more marriages, more divorces are sure to follow. But when a couple moves from a recognition to a nonrecognition state, they may lose access to divorce. Unlike in Perry, where friendly state officials created the standing issue that proved dispositive, officials in many of these states refusing recognition will gladly defend same-sex-marriage bans, thereby neatly teeing up the substantive issues.

What, then, will happen when one or more of these cases make it to the Supreme Court? Once again, all eyes will be on Justice Anthony Kennedy. While he did not address the constitutionality of state marriage bans, his majority opinion in Windsor gives us an indication of what to expect. If we look at Kennedy’s description of same-sex couples and the constitutional principles to which they appeal, we see a profound appreciation for both sexual-orientation equality and the meaning of marriage in public and private life. In Kennedy’s conceptualization, “marriage is more than a routine classification for purposes of certain statutory benefits.” Rather it is “a far-reaching legal acknowledg­ment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community.” In opening marriage to same-sex couples, New York “enhanced the recognition, dignity, and protection of [lesbians and gay men] in their own community.” Through Kennedy’s eyes, access to marriage at the state level seems central to lesbian and gay equality and liberty.

In dissent, Chief Justice John Roberts attempted to limit the implications of Kennedy’s opinion, claiming that the majority’s “logic ... does not decide ... the distinct question whether the States ... may continue to utilize the traditional definition of marriage.” Justice Antonin Scalia, however, was unconvinced: “It takes real cheek for today’s major­ity to assure us ... that a constitu­tional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it.” For Scalia, Kennedy and his colleagues have already decided that state marriage bans are unconstitutional.

Yet this theoretical resolution is cold comfort to same-sex couples living in the many states that maintain marriage bans. These couples will have to wait, as Scalia put it, for “the second, state-law shoe to be dropped.” At that point, marriage may help bridge the gap between the two gay Americas that have emerged in recent years. But for now, the marriage issue has simply accentuated a troubling divide.