LGBT issues

By Mae Kuykendall, Professor of Law, Michigan State University, and Director of the Legal E-Marriage Project

A federal court in Manhattan has entered a summary judgment in favor of Edith Windsor, a widow assessed an estate tax of $363,053 on her spousal inheritance. This sum was assessed because the federal government, pursuant to Section 3 of the Defense of Marriage Act (“DOMA”), deems her Canada-solemnized same-sex marriage nonexistent.

This holding is the latest defeat for Congress’s 1996 handiwork. With the request by the Obama administration for certiorari to the First Circuit DOMA holding and to a Ninth Circuit DOMA scheduled for September oral argument, and with Prop 8 litigation potentially headed for high court review, Windsor nicely differentiates among the distinctive issues affecting same-sex marriage.

In Windsor, a brief for intervenors for the U.S. House of Representatives argued that Congress could rationally conclude there is a federal interest in impeding “an unprecedented redefinition of our foundational social institution.” Judge Barbara Jones politely demolished this portentous pronouncement as support for federal law.

The judge demonstrates that all-or-nothing arguments about same-sex marriage conflate separate questions. The intuition that a loud NO! is final masks the need for nuance. 

With same-sex marriage, there are several obviously distinctive questions. First, must states affirmatively authorize same-sex marriage by issuing marriage licenses to couples? Second, may the federal government treat as null for federal law a state-created legal status affecting family relations? Third, to what extent are states required to afford recognition to legal statuses created outside the state by sister states? Fourth, what determines whether a state has recognized a given marriage, at a given time?  With differing questions, different factors are at work, and they demand multiple answers.

by Jeremy Leaming

It took an incredibly ridiculous amount of time, but 45 years ago today the U.S. Supreme Court finally got around to invalidating state laws that banned interracial marriage.

The case, Loving v. Virginia decided on June 12, 1967, involved Mildred and Richard Loving who were married in the District of Columbia in 1958, and later prosecuted in Virginia by authorizes intent on enforcing the state’s racist laws against interracial marriage. The couple later moved to the District of Columbia and lodged a class action challenging Virginia’s anti-miscegenation laws as a violation of the Constitution’s liberty protections found in the Fourteenth Amendment.

The case eventually reached the Supreme Court.

Writing for the unanimous Court, Chief Justice Warren E. Burger rejected Virginia’s arguments that its laws did not subvert the Constitution. The state’s arguments are not worth reciting. Suffice it to say, those arguments were racist. The Warren Court easily found that Virginia’s laws were a serious affront to the Constitution’s liberty protections.

“There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification,” Burger wrote. “The fact that Virginia prohibits only interracial marriage involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.

“We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”