Response by the “defendants” in the DOMA and Prop 8 cases to the Supreme Court’s June 26 rulings was swift.
Within hours after the Court announced that Section 3 of DOMA was unconstitutional, the President had announced his “applause” for the decision and instruction to the Attorney General to coordinate with executive branch department heads to seek “smooth” implementation for federal recognition of lawfully-contracted same-sex marriages. Some of the quickest responses came rolling in right away: Defense Secretary Hagel said steps would immediately be taken to extend spousal benefits to for same-sex spouses of military personnel, and Homeland Security Secretary Napolitano said that Customs & Immigration would immediately accord equal recognition to same-sex marriages. The first green card was issued for a same-sex spouse just two days later, on Friday, for a Florida couple that included a Bulgarian citizen, and even more quickly, an immigration judge in New York halted a deportation hearing on Wednesday morning after being handed a copy of the DOMA decision fresh off the presses. President Obama called Edie Windsor to congratulate her on the victory, but he did not, as far as we know, say “The check is in the mail,” which would have been a nice touch. The IRS bureaucracy does not grind that quickly. Indeed, the IRS may end up being one of the main sticking points for implementation, having emitted a non-committal statement that it would be providing guidance for taxpayers, employers and corporations, but not indicating when that would be forthcoming. Office of Personnel Management sent out a notice to executive branch heads that same-sex spouses should immediately be recognized, and that an open enrollment period would commence for federal employees to enroll their same-sex spouses in benefits programs. Nobody in the executive branch seemed inclined to wait until the Court issues its official mandate later in July before taking action, but that’s not surprising, given the government’s posture on the merits of the case!
Also within hours of the Prop 8 decision being announced, Governor Jerry Brown of California issued a statement attaching an opinion letter he had solicited weeks ago from Attorney General Kamala Harris about the scope of Judge Vaughn Walker’s Order. Harris advised that when the stay was lifted by the 9th Circuit, same-sex marriage should be immediately available in every county. In other words, she was rejecting the contention by the initiative proponents that the Order was limited to the plaintiff couples or the two counties where clerks were named defendants in the case. Brown followed her advice and had the Department of Public Health send a notice to all County Clerks and Recorders that upon lifting of the stay, same-sex couples should be treated the same as different-sex couples. Harris contacted the 9th Circuit and urged that the stay be lifted right away. The 9th Circuit panel that had issued the now-vacated decision expeditously responded on Friday, June 28, lifting the stay, opening the way for the plaintiff couples to get married that afternoon. The San Francisco County Clerk’s office decided to stay open over the weekend to accommodate the demand for marriage licenses and ceremonies during Gay Pride Week, which was expected to draw 1.5 million to San Francisco for the annual festivities.
The Proponents tried to throw a wrench into the works, filing an “emergency motion” with the Supreme Court to halt the marriages, contending that the 9th Circuit could not lift the stay until the Supreme Court’s formal mandate arrived later in July. Justice Kennedy, to whom the motion was referred, quickly denied it without comment. Proponents are still expected to try other legal strategems in the days ahead.
Meanwhile, the first court to cite and rely on the Windsor case issued its ruling on Friday, June 28. District Judge David M. Lawson, relying in part on the reasoning of Windsor as well as the Arizona domestic partnership benefits case, ruling in Bassett v. Snyder, 2013 WL 3285111 (E.D.Mich.), that plaintiffs were entitled to a preliminary injunction against the operation of a Michigan law that had been adopted to block public employers from providing domestic partnership benefits to their employees. Under Public Law 297, employee benefits may be extended only to legal spouses, legal dependents, or legal heirs (those who could inherit from an employee under the intestacy laws) who are living with the employee. The legislative history shows that this was passed specifically to override local governments that had extended benefits to non-marital partners. Michigan’s Supreme Court had construed the state’s marriage amendment to forbid extending benefits to same-sex domestic partners as such, but many localities and government institutions had contrived a work-around to extend benefits to cohabitants who met certain minimal requirements, regardless of sex, and the law was intended to end this loophole as a means of enforcing the the marriage amendment. The court found this to be a transparently discriminatory measure aimed mainly at same-sex couples — agreeing with the Arizona district court and the 9th Circuit (but failing to note the new development that the Supreme Court denied Arizona Gov. Jan Brewer’s cert petition on June 27) — and finding, in light of the reasoning of Windsor, that this would be an equal protection violation.
Things are happening so fast, it’s difficult to keep up. Lambda Legal announced it was filing a summary judgment motion in its pending N.J. Superior Court lawsuit seeking a ruling that the civil union act fails to provide equal rights for civil union partners, and the DOMA decision gives added weight to that contention. A state legislator who represents the plaintiffs in a New Mexico marriage equality lawsuit announced he would petition the state supreme court to take up the case directly, in light of Windor, and of course the 9th Circuit will soon hear arguments in the Hawaii and Nevada cases. (The Supreme Court denied a petition by the defenders of the Nevada marriage amendment, who were trying to leapfrog the 9th Circuit, also on June 27.) Racing to keep up….