Oregon State Bar Bulletin — MAY 2013

Parting Thoughts

While We Wait
By Mark Johnson Roberts

Like most family lawyers, I watch two Supreme Court cases of particular interest this term. In the 20 years since the Hawaii Supreme Court held that state’s marriage law unconstitutional, and the 17 years since Congress passed the Defense of Marriage Act (DOMA) in response, same-sex family relationships have become a staple part of my practice. One case, United States v. Windsor, challenges DOMA’s limitation of federal marriage laws to opposite-sex couples. The other, Hollingsworth v. Perry, is a federal challenge to Proposition 8, California’s constitutional prohibition of marriage for same-sex couples. The outcome in these cases could have a major impact on me and my practice.

Edith Windsor was charged with a $365,000 federal estate tax bill when her wife died, which she would not have incurred had she been married to a man. Based on the progress of the case so far, it appears likely that DOMA will be overturned. The attorney defending the statute did a masterful job of trying to define the issue as something other than discrimination, but the justices were having none of it. The Court’s five more liberal justices — Breyer, Ginsburg, Kagan, Kennedy and Sotomayor — peppered him with questions throughout the hearing. Ginsburg famously referred to the federal statute as creating a “skim-milk marriage” for gay people. While the precise reason for the Court’s ruling remains unclear, it seems unlikely that DOMA will stand.

A favorable ruling in Windsor likely will have little immediate impact here in Oregon, as we do not have marriage equality in this state. For those Oregonians who have married elsewhere, some federal laws will start to cover their marriages where they haven’t before. One of the peculiarities of federal law, though, is that sometimes it turns on the law of the state of residence. In other words, because Oregon doesn’t recognize same-sex marriages, some federal benefits may still be out of reach.

One possible outcome is that the federal government may begin treating civil unions as marriages. If that were to happen, it would have a major impact here, as couples registered under our domestic partnership law would immediately become eligible for federal rights and benefits as though they were married. We already have seen examples of both the federal and some state governments treating civil unions in just this way.

The outcome of the California case is very difficult to predict. Will the Court conclude that it shouldn’t have taken the case in the first place? There is clearly some sentiment on the Court for dismissing the case as “improvidently granted.” While this disposition would make marriage once again legal for same-sex couples in California, it would have little impact elsewhere.

If the Court decides the merits, there is a strong likelihood that it will rely on its already-developed case law for viewing discrimination based on sexual orientation. Those older cases hold, in essence, that a state that wants to discriminate must advance some legitimate government purpose for doing so. So far, the states confronted with that burden have been unable to carry it, and California cannot do so here, either.

This is the basis of the Obama administration’s so-called “eight state solution,” which would impact each of the states that have adopted civil unions, including Oregon. Those states are the ones that have actually constructed a “separate but equal” system for gay relationship recognition, which the Court would be holding is inappropriate. While the justices were critical of this solution at argument, it holds great political appeal. It allows the Court to adopt an incremental approach, which it likes to do in contentious cases. It would apply only to those states that have adopted civil union laws, where presumably resistance to marriage equality is at its lowest. And it would allow the remaining states to come to their own conclusions on the issue for the time being.

It is possible that the LGBT equivalent of Loving v. Virginia — the case that legitimated interracial marriage across the United States — will come out of the Hollingsworth case, but the Court may judge that the time for such a sweeping ruling is not yet upon us. If it does rule for marriage equality across the board, then it’s possible that the final chapter for marriage discrimination in America will have been written. We can expect some final attempt to amend the Constitution, but presumably that outcome is unlikely. I’ll be waiting along with you to see what ruling the Court makes in these cases next month.


Portland attorney Mark Johnson Roberts is a former president of the National LGBT Bar Association and of the Oregon State Bar. He practices family law at Gevurtz Menashe with a focus on LGBT family law issues.

© 2013 Mark Johnson Roberts

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