Uberlawyer David Bois said Tuesday a loss on Prop 8 in the Supreme Court this month won’t be the end of the fight he and Ted Olson are waging for marriage equality.
“We will bring lawsuits in other states” to force the 38 that ban same-sex marriage to recognize them under the full faith and credit clause of the Constitution.
And Sen. Kirstin Gillibrand, D-NY, said Congress still needs to repeal the Defense of Marriage Act even if the Supreme Court overturns the law this month. That’s because the court will rule only on Section 3, which bans federal recognition of same-sex marriages, but not Section 2, which allows a state to refuse to recognize a same-sex marriage from another state.
Gillibrand said that means a same-sex couple married in New York who retires to Florida or any other state that does not not allow same-sex marriages would not have their marriage recognized. “We will repeal DOMA regardless” of how the court rules, Gillibrand said. Sen. Dianne Feinstein, D-Calif., is the lead sponsor of the repeal bill, the Respect for Marriage Act.
Gillibrand and Bois, a lead lawyer with former Solicitor General Olson in the case that challenges California’s Proposition 8, banning same-sex marriage, spoke at an event sponsored by the center-left group Third Way. The group has a useful graphic explaining the complex permutations of possible rulings in the two cases.
Legal analysts widely expect the court to strike down DOMA in United States v. Windsor, in which lesbian widow Edith Windsor of New York was forced to pay the government $360,000 in estate taxes she would not have owed had her marriage been recognized.
Analysts expect the court to reject the argument by Bois and Olson in Hollingsworth v. Perry that California’s Prop. 8 violates the equal protection clause of the Constitution, thus extending the right to same-sex marriage across all 50 states. The Court is expected instead to deny the Prop. 8 appeal, allowing lower court decisions that overturn the initiative to stand and in effect making same-sex marriage legal only in California.
Jane Schacter, a Stanford University professor of constitutional law, said even repealing DOMA would not solve the question of state recognition.
“Even if DOMA were repealed tomorrow, states traditionally have relied on their own principles and public policies to decide to recognize another state’s marriage,” Schacter said. “It’s not as if DOMA for the first time empowered them to do that.”
For decades, states differed on marriage rules, such as whether to allow first cousins to marry. Schacter said the Supreme Court has never applied the full faith and credit clause of the Constitution to compel states to recognize out-of-state marriages that are illegal in their own state.
Differences in state laws on same-sex marriage are “going to complicate things, no question about that,” Schacter said. “Just getting rid of DOMA doesn’t get rid of that complication.”