Last week, the U.S. Supreme Court, in its divided 5-4 decision in United States v. Windsor, No. 12-307 (U.S. Jun. 26, 2013) (PDF), struck down as unconstitutional the Defense of Marriage Act (“DOMA”), the federal statute signed into law by President Bill Clinton in 1996 that defined marriage as a union between one man and one woman and denied federal benefits to gay couples who had been married under state law. Writing for the majority, Justice Anthony Kennedy (who has been at the center of gay rights decisions for a decade now) wrote that Congress had no basis for invalidating a state’s decision to extend “the recognition, dignity and protection” of marriage to same-sex couples. In highlighting how the regulation of marriage historically and traditionally had been within the authority of the states, and how DOMA by design had interfered with the states’ traditional powers, Justice Kennedy struck, as many commentators are saying, a federalism chord.
But Justice Scalia, in a blistering dissent (blistering even by Justice Scalia’s own standards) disputed that federalism concerns were at the heart of the majority’s ruling. Justice Scalia wrote that the majority was relying on a “pretense that today’s prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term).” Justice Scalia added: “In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the ‘personhood and dignity’ which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that ‘personhood and dignity’ in the first place. As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.” It appears that the second “state-law shoe” is in fact dropping, as Justice Scalia predicted.
Just yesterday, a district court judge in the Sixth Circuit, citing Windsor, denied a motion to dismiss a complaint filed by a lesbian couple in Michigan challenging the state’s ban on adoption by unmarried couples as well as a 2004 constitutional amendment approved by Michigan voters that defines marriage only as between a man and a woman. See Opinion and Order in DeBoer v. Synder, Case No. 12-cv-10285 (E.D. Mich.) (PDF). Senior U.S. District Court Judge Bernard Friedman noted how the Supreme Court in Windsor had expressed its concern that laws banning gay marriages “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,” and that “[t]his is exactly the type of harm plaintiffs seek to remedy in this case.”
Judge Friedman has scheduled a July 10 conference with the parties to set a trial date. It appears that the next battle over gay rights soon may be headed to the Sixth Circuit. The second shoe is dropping.