State marriage laws look wobbly after last week’s U.S. Supreme Court ruling on the Defense of Marriage Act (DOMA). Justice Anthony Kennedy, historically a rabid defender of states rights, wrote an opinion last week that judges are already using to block one state law and challenge another.
Based on Kennedy’s ruling that struck down DOMA, a Michigan judge issued a preliminary injunction against a state law that only allows public benefits for married spouses of government employees. Marriage in Michigan is defined as between one man and one woman. Domestic partners, gay or not, cannot receive public benefits under the law. The judge said the Michigan law discriminated against gay couples.
“The court finds that the plaintiffs have stated a plausible claim that the law violates the equal protection clause,” Judge David Lawson wrote in granting a preliminary injunction against the law. He described how Kennedy struck down DOMA because it was motivated by “animus” toward homosexuals, and said the Michigan public benefits law did the same.
“The historical background and legislative history of the act demonstrate that it was motivated by animus against gay men and lesbians,” Lawson wrote. He said the 6th U.S. Circuit Court of Appeals, the circuit that includes his court, doesn’t yet give gays and lesbians equal protection status but it should, based on the DOMA ruling.
Then on Monday, another Michigan judge allowed a lawsuit to proceed against the state constitutional amendment that defines marriage as between one man and one woman. That judge also based his decision on the DOMA ruling.
“Plaintiffs’ equal protection claim has sufficient merit to proceed,” Judge Bernard Friedman wrote. “The United States Supreme Court’s recent decision in United States v. Windsor, [the DOMA case] has provided the requisite precedential fodder for both parties to this litigation.”
“The Supreme Court has just invalidated a federal statute on equal protection grounds because it ‘place[d] same-sex couples in an unstable position of being in a second-tier marriage,’” he continued. “Moreover, and of particular importance to this case, the justices expressed concern that the natural consequence of such discriminatory legislation would not only lead to the relegation of same-sex relationships to a form of second-tier status, but impair the rights of ‘tens of thousands of children now being raised by same-sex couples’ as well. This is exactly the type of harm plaintiffs seek to remedy in this case.”
Though the Supreme Court struck down a federal law and not a state marriage law, judges are applying the ruling to state laws because Kennedy wrote that DOMA violated equal protection. Kennedy sought to protect the state laws by saying that DOMA only discriminated in states where gay marriage was legal—but these Michigan judges didn’t draw that fuzzy distinction. They said that if DOMA was a discriminatory law against gay married couples, then Michigan’s marriage laws could very well be discriminatory too.
The Michigan rulings represent only two instances and both at lower courts, but traditional marriage advocates are already worried that judges will begin using the DOMA ruling to overturn state laws elsewhere.
One of the lawyers involved with the Supreme Court cases wasn’t surprised to see the ruling used to attack traditional marriage laws.
“Those who favor redefining marriage are going to seize the Windsor case and try to use it the way these judges did—as a blanket, all-purpose rule that treating same-sex couples differently than opposite-sex couples is automatic animus toward them,” said Jordan Lorence, a lawyer for Alliance Defending Freedom, which was involved in both the Windsor case and the Proposition 8 case at the Supreme Court. “There’s a wrecking ball way that Windsor can be used.”