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Murky legal status for same sex marriage


Published December 19, 2013

“I don’t think it’s just law professors being fussy. Unless one can distill clear doctrinal principles from this case, it’s hard to know what to do with it going forward.”
Anthony O'Rourke, professor
UB Law School

If you’re looking for clarity on the legal status of same-sex marriage in the United States, don’t look to the Supreme Court. That was the overarching message of a recent panel discussion of the high court’s recent ruling in the Windsor case, which invalidated a section of the federal Defense of Marriage Act.

The presentation, titled “U.S. v. Windsor and the Defense of Marriage Act: How Did We Get Here and Where Are We Going?” featured Law School faculty members Matthew Steilen, Anthony O’Rourke and Michael Boucai. About 35 people attended the Nov. 14 event, which was sponsored by Phi Alpha Delta and OUTLaw.

If there was a common thread to the experts’ remarks, it was that the Windsor opinion leaves unsettled several questions about whether and how same-sex marriage will become the law of the land. It traditionally has been left to the states, not the federal government, to define marriage, and 16 states now allow same-sex marriage.

Steilen called the Windsor decision “a very exciting opinion on interpretive authority,” and gave an outline of the facts of the case. It was brought by a New York woman, Edith Windsor, who was executor of her wife’s estate; they had married in Canada. The Internal Revenue Service denied her the estate tax exemption that the law affords spouses, saying that Section 3 of the Defense of Marriage Act excludes same-sex couples from the definition of “spouse.”

Complications arose, Steilen said, when the government switched sides in the middle of the suit, saying it would not defend the case because it considered DOMA unconstitutional. The Bipartisan Legal Advisory Group (BLAG), a standing body of the House of Representatives, then intervened in U.S. District Court to defend the statute.

The plaintiff prevailed, a decision affirmed by the Second Circuit Court of Appeals. The issue then became whether BLAG had standing to appeal the decision further, and whether the Supreme Court had jurisdiction to hear the case.

On the latter question, Steilen noted that normally parties in a case have to be adverse to each other — the “cases and controversies” standard. But the federal government and the plaintiff agreed with each other that DOMA was unconstitutional, raising issues of jurisdiction. He then explored Justice Anthony Kennedy’s majority opinion, which said that “as long as there is some kind of injury that exists, that the court can redress by entering an order, then the court retains jurisdiction,” and Justice Antonin Scalia’s “typical withering dissent,” which argued that “the question is whether or not the parties are actually adverse. If the parties agree, court has no jurisdiction.”

The back-and-forth, Steilen said, amounted to “the most complex and interesting conversation between two justices in a long time.”

In his analysis, O’Rourke noted that the court struck down only Section 3 of DOMA, leaving intact Section 2, which says that states may refuse to recognize same-sex marriages that are solemnized in other states. The opinion is “very difficult to understand,” he said, noting Scalia’s description of it as “a disappearing trail of legal argle-bargle.”

O’Rourke said Kennedy’s opinion asserts that DOMA violates the Fifth Amendment, but ultimately doesn’t specify whether it violates the amendment’s substantive due-process or equal-protection guarantees. It doesn’t specify the standard of scrutiny that should apply to same-sex marriage, leaving unclear whether marriage is a fundamental right or a government-granted privilege. And it doesn’t pin down the significance of the court’s finding that DOMA encroaches on states’ power to define marriage.

“I don’t think it’s just law professors being fussy,” O’Rourke said. “Unless one can distill clear doctrinal principles from this case, it’s hard to know what to do with it going forward.”

Boucai put the Windsor case in context, giving a history of the movement toward same-sex marriage that began in 1992 when Hawaii first explored extending the right of marriage to same-sex couples. Congress passed DOMA in response, and a number of states enacted their own version of the law.

“By the time the court granted cert in Windsor, there was already a developing legal consensus, at least in the more liberal jurisdictions that recently considered the question, that DOMA was unconstitutional,” Boucai said.

The Windsor decision, he said, was not an unalloyed victory for supporters of same-sex marriage. Bans on same-sex marriage remain in place in dozens of states, Section 2 of DOMA still stands and it remains unclear what degree of scrutiny should be applied to classifications based on sexual orientation.

Future cases will test these unresolved issues, Boucai said, and the issue of Section 2 of DOMA may be resolved legislatively. He noted that a bill called the Respect for Marriage Act, currently before the House, would repeal DOMA in its entirety.

“I do think Justice Scalia is right,” Boucai said, “when he said we’re all just waiting for the other shoe to drop.”