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Last modified: Wednesday, June 26, 2013

Supreme Court on same-sex marriage: Indiana University experts available to comment

June 26, 2013

BLOOMINGTON, Ind. -- The U.S. Supreme Court issued its eagerly awaited decisions on two cases involving same-sex marriage today. In United States v. Windsor, the court tossed out a key section of the federal Defense of Marriage Act, or DOMA. And in Hollingsworth v. Perry, it let stand a lower-court ruling that overturned Proposition 8, California's voter initiative outlawing gay marriage.

Indiana University experts are available to comment on the rulings and discuss the following topics:

A 'momentous step forward'
Home run v. a single
An 'expedient way to dodge a decision'
Historic decision for families and children
Reasoning 'needlessly fuzzy'

A 'momentous step forward'

Deborah Widiss

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Deborah Widiss, associate professor of law in the IU Maurer School of Law in Bloomington, says the court's decision on DOMA appropriately recognizes that the law created "second-tier" marriages, an approach that is inconsistent with constitutional guarantees of equality under law.

"This is a momentous step forward for gay and lesbian couples and their families," she said. "Tens of thousands of same-sex married couples will receive very important new rights under federal law, covering everything from taxes, to time off from work to take care of a spouse, to immigration rights, to military benefits."

Widiss added that the ruling will create new challenges for the federal government and courts in determining which marriages "count" for federal purposes. Also, the government will have to decide whether to treat state-sanctioned civil unions as marriages under federal law.

"If a couple is married in Iowa but moves to a state like Indiana, which does not recognize same-sex marriages, are they still 'married' under federal law?" she asked. "Or will their federal 'marriage' dissolve when they cross state lines?"

She said the federal government should adopt a "bright line rule" that recognizes marriages celebrated in states that permit same-sex marriage.

"This rule would be easy to administer, and it would provide couples the security of knowing that -- at least for federal purposes -- their marriage will not disappear if they move," she said. "It also is fundamentally fairer for the U.S. government to treat all married couples alike, regardless of where they live."

Widiss conducts research on employment law, family law, legislation, gender and gender stereotypes. To speak with her, contact Ken Turchi at 812-856-4044 or, or Steve Hinnefeld at 812-856-3488 or Top

Home run v. a single

Brian Powell, an Indiana University sociologist who has long studied Americans' views on marriage and family, including same-sex marriage, said, "The Supreme Court decisions both reflect where public opinion is today and will shape the future of public opinion on same-sex marriage."

Powell describes the DOMA ruling as historic, saying it would have been unimaginable five to 10 years ago. Its importance comes in part because it clearly states that same-sex couples -- those who are legally married in a state that allows same-sex marriage -- are deserving of the rights and benefits of marriage provided by the federal government. In contrast, the Proposition 8 ruling is not as expansive, but the sheer size of the state is significant.

Before the ruling, approximately one in six Americans lived in a state that legally allowed same-sex marriage or accepted same-sex marriage that was granted in another state. Once same-sex marriage rights are restored in California, this number will increase to about one in three Americans.

"The DOMA decision is a bold decision, while the Prop 8 decision is a timid one," said Powell, author of "Counted Out: Same-Sex Relations and Americans' Definitions of Family" (Russell Sage Foundation, 2010). "In baseball lingo, it's akin to DOMA being a home run and Prop 8 being a walk or a single."

Powell has conducted several nationally representative surveys of Americans' opinions of family, beginning in 2003, and has watched support for same-sex unions grow 2 percent to 2.5 percent a year, which he describes as surprisingly speedy for such a controversial social issue. He discussed this further in a previous media tip.

"Both Supreme Court decisions were 5-4 decisions, with both of them ultimately siding with people who are in favor of marriage equality," he said. "Ironically, that 5-4 split is very similar to where Americans are right now, with slightly more people being in favor of gay marriage and slightly less being opposed."

Powell is the Rudy Professor of Sociology in the College of Arts and Sciences at IU Bloomington and can be reached at 812-360-0474 or For additional assistance, contact Tracy James at 812-855-0084 or or Steve Hinnefeld at 812-856-3488 or Top

An 'expedient way to dodge a decision'

Ryan Scott

Ryan Scott, associate professor of law in the IU Maurer School of Law in Bloomington, said it's regrettable the court decided the Proposition 8 case on jurisdictional grounds.

"In my opinion, this is an unfortunate and poorly reasoned standing decision that invents several new hurdles for appellants seeking review in federal court," he said. "Based on the novelty of the requirements it imposes, it seems clear that the justices in the majority wanted some excuse -- any excuse! -- to avoid reaching the merits of the equal protection issue, and they saw this resolution as an expedient way to dodge the decision."

He said the decision could make it very difficult to get courts to review future decisions striking down ballot initiatives as unconstitutional, at least if state officials elect not to defend the law.

"Ballot measures to legalize marijuana, to reform state taxes, to regulate abortion, to expand access to education and health care and to prohibit affirmative action may be struck down by a federal court, and this decision will make appellate review of those judgments, even if incorrect, much more difficult to secure," he said.

Scott added that, while the outcome of the Prop 8 case was expected, the lineup of justices was surprising and didn't follow ideological lines. Conservative Chief Justice John Roberts wrote the decision and was joined by conservative Antonin Scalia and liberals Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. Justice Anthony Kennedy wrote the dissent and was joined by conservatives Clarence Thomas and Samuel Alito and liberal Sonia Sotomayor.

"In the coming months, there will be a lot of speculation about why the justices voted as they did," he said.

Scott teaches and writes on criminal law and procedure, federal courts and jurisdiction, and the separation of powers. To speak with him, contact Ken Turchi at 812-856-4044 or, or Steve Hinnefeld at 812-856-3488 or Top

Historic decision for families and children

Jennifer Drobac

Jennifer Drobac

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The decision that overturns DOMA and paves the way for recognition of validly performed same-sex marriages in all states "marks a historic day in the United States," says Jennifer Ann Drobac, professor of law in the IU McKinney School of Law in Indianapolis.

"Twelve states and the District of Columbia currently issue licenses for same-sex marriages," she said. "Same-sex couples, their children and their friends will feel vindicated and elated over the court's recognition of their rights and lawful family bonds. The majority decision is much broader than some pundits anticipated and will bring joy to many families."

Drobac noted that Justice Anthony Kennedy's decision drew on arguments from across the ideological spectrum. First, it affirmed that marriage is now, and has been historically, properly within the authority of the separate states. "This is a 'states rights' tack that should have attracted the conservative justices," she said.

But the decision also relied on the Constitution's guarantee of equal protection under the law. "The reliance on equal protection is quite significant and marks the evolution of our understanding of equality," she said.

Drobac noted that Kennedy's decision repeatedly acknowledged the rights of family members and children of same-sex marriages and the harm that's done to them when the government doesn't recognize legally performed marriages.

"The majority decision will, therefore, mean that thousands of citizens will enjoy federal rights (and responsibilities) afforded married couples and their families," she said. "This is a historic decision and moment for these families and the rest of the nation."

Drobac is an authority on family law, juvenile law and gender issues. She can be reached at 317-278-4777 or For additional assistance, contact Elizabeth Allington at 317-278-3038 or Top

Reasoning 'needlessly fuzzy'

Beth Cate, associate professor in the IU School of Public and Environmental Affairs in Bloomington, says Justice Anthony Kennedy's DOMA opinion is "needlessly fuzzy" about both what aspects of the Fifth Amendment he is relying on -- due process or equal protection -- and what standard of review he is using.

"Which is classic Kennedy, actually," she says.

"The opinion appears to hold that there is no rational basis for DOMA's refusal to recognize in federal law same-sex marriages that are permitted and recognized by states," Cate said, "with the court using a form of 'rational basis plus' scrutiny based not on historic discrimination against homosexuals as a class, but on federalism and the historic deference the feds have shown to state authority over marriage."

She said the dissent by Chief Justice John Roberts suggests Kennedy "has boxed himself into accepting state-by-state judgments on whether gay couples may marry. And that seems correct -- and not inconsistent with Justice Kennedy's discussion of 'people power' in the Proposition 8 case -- even though Kennedy leaves a bit of wiggle room by saying that states are subject to 'constitutional limitations.'

"Until the court has another opportunity to address the constitutionality of state same-sex marriage bans," she says, "attention will continue to focus on the state-by-state pursuit of marriage equality."

Cate's professional interests include constitutional law and Supreme Court decision-making. To speak with her, contact Jim Hanchett, 812-856-5490 or, or Steve Hinnefeld, 812-856-3488 or