Hidden Time Bomb in the Gay Marriage Case?

The Orwellian “Defense of Marriage Act” seems to have had a bad day with the Supremes, which is a good thing. Let’s assume that the Court strikes down section 3, which bans federal benefits for same-sex couples, and does what the plaintiff wants, namely, make one’s marital status depend upon which state the couple is in. Since Edith Windsor and Thea Spyer were in New York, and New York recognizes same-sex couples, they are married for federal purposes. (It’s a bit more complicated than that, but for our purposes here, it’s good enough.).

That might raise more questions than it answers.

Suppose Molly and Sarah get married in California. Then, for reasons known only to themselves, they decide to move to Oklahoma, which of course does not recognize same-sex marriage. Then Molly dies and Sarah wants Social Security survivors’ benefits. Does she get them? The answer is not obvious. Molly and Sarah were legally married in California, but they lived in — and were thus citizens of — Oklahoma. Which state is the federal government supposed to listen to?

At the argument yesterday, Chief Justice Roberts immediately grasped the problem. (He’s conveniently obtuse when it comes to things that are politically inconvenient to him, and never resists making absurd legal claims, but he is no dummy). Say Ms. Windsor and her spouse had moved to North Carolina, he asked Roberta Kaplan, her lawyer. Would they qualify for federal benefits? No, said Kaplan: it would turn on domicile, not state of marriage. But her answer hardly carries the force of law.

One could see why that would be the answer — it is the state of citizenship — but one could also see why it wouldn’t: it might interfere with the right to interstate travel, which the Court has repeatedly held to be a fundamental right. If the answer is that benefits eligibility turns on the state that approves the marriage, then one can imagine the development of a thriving marriage industry in states that approve same-sex marriage. (That industry has already developed, but now it would mean even more).

There is actually a third possibility, which might avoid the extremes but make things more complicated. The answer might turn on the interpretation of the statute in question. After all, as was mentioned yesterday, more than 1,000 federal statutory provisions mention marriage, and it could be a matter of statutory interpretation as to whether the marriage definition applies to the state of domicile or place of marriage.

But if that is the case, then it gives the Obama Administration important new power. As every lawyer knows, the 1984 Supreme Court ruling in Chevron v. NRDC holds that courts must defer to reasonable administrative (i.e. executive agency) constructions of a statute. President Obama could (and should) make it very clear that he expects agencies charged with interpreting statutes in their jurisdiction that mention marriage should interpret it to mean “place of marriage”.

Of course, the Court could answer this question in its opinion. But if Justice Kennedy is the deciding vote, his practice is not to clarify these things, and in any event, the four centrist justices (Ginsburg, Breyer, Sotomayor, Kagan) will probably not agree to make it the state of domicile (Kennedy’s likely preference). So it most likely will not be answered.

Put another way, even if the Court strikes down Section 3, this one ain’t over, folks.

[Originally posted at The Reality-based Community]

Jonathan Zasloff

Jonathan Zasloff is a professor of law at the University of California, Los Angeles.