LGBTQ Legal Outlook: How SCOTUS could impact the Pacific Northwest

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LGBTQ Legal Outlook Mark Johnson Roberts
By Mark Johnson Roberts, PQ Monthly
[Editor's note: This is an updated version of an article posted on our blog shortly after the Supreme Court heard arguments on the two same-sex marriage cases.] It has been 20 years since Hawaii’s Supreme Court held that state’s marriage law unconstitutional, and 17 years since Congress passed the Defense of Marriage Act (DOMA) in response. This year, the U.S. Supreme Court heard oral argument in two marriage cases. “United States v. Windsor†challenges DOMA’s limitation of federal marriage laws to opposite-sex couples. “Hollingsworth v. Perry†is a federal challenge to Proposition 8, California’s constitutional prohibition of marriage for same-sex couples. Depending on the court’s ruling, the outcome in these cases could have a major impact here in the Northwest. In the DOMA case, 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. It appears to most commentators, myself included, that DOMA will likely be overturned. The attorney for the members of Congress backing DOMA 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†would mean a great deal for Washington residents, as marriages celebrated in that state would now be honored by the federal government. It likely would have little immediate impact in Oregon, as the state does not yet have marriage rights for same-sex couples. 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. It is possible that the federal government will begin treating civil unions as marriages. If that is the case, it would have a major Oregon impact, as couples registered under the domestic partnership law would immediately become eligible for federal rights and benefits as though they were married. While it may seem counterintuitive, we already have seen examples of both the federal and some state governments treating civil unions in this way. The outcome in “Hollingsworth†is very difficult to predict. Sometimes, in the process of litigating a case, the court concludes that it shouldn’t have taken it in the first place. The outcome in such cases is a dismissal of the case as “improvidently granted.†Based on the justices’ statements and questions at oral argument, there is clearly some sentiment on the court for disposing of the case in this way. 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 the court will rely on its already-developed case law for viewing discrimination based on sexual orientation rather than creating new law. 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. Each of the reasons it advances to justify the distinction has already been undercut by its own law, which gives all the rights and obligations of marriage through its civil union statute. This is the Obama administration’s so-called “eight-state solution,†and it 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 same-sex relationship recognition, which the court would be holding as 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 LGBTQ 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 remote. I’ll be waiting along with you to see what ruling the court makes in June. 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 the Gevurtz Menashe law firm with a particular focus on LGBT family law issues. He can be reached at