Historic verdicts

Two recent judgments of the U.S. Supreme Court relating to same-sex marriages hold important lessons for India.

Edith Windsor, the 84-year-old woman at the centre of the U.S. Supreme Court decision granting gay couples federal marriage benefits, is surrounded by well-wishers during a gay pride march in New York on June 30.

ON June 26, the United States Supreme Court delivered two historic verdicts that will have a lasting influence on equality jurisprudence throughout the world.

In the first case, United States vs Windsor , the court held that the Defence of Marriage Act (DOMA), a federal Act enacted in 1996 in the U.S., is unconstitutional because it leads to deprivation of the equal liberty of persons. Section 3 of this Act defined “marriage” and “spouse” as excluding same-sex partners for the purpose of identifying beneficiaries of tax relief. Of the nine judges who comprise the U.S. Supreme Court, five voted against DOMA, while four voted in favour.

Two women, Edith Windsor and Thea Spyer, met in New York City in 1963 and began a live-in relationship. They were registered as domestic partners when New York City gave that right to same-sex couples in 1993. They later registered their marriage in Canada in 2007. The State of New York deemed their marriage, registered in Ontario, a valid one. Thea Spyer died in February 2009 and left her entire estate to Edith Windsor. Because DOMA denies federal recognition to same-sex spouses, Edith Windsor did not qualify for the marital exemption from the federal estate tax, which excludes from taxation “any interest in property which passes or has passed from the decedent to his surviving spouse”. Edith Windsor, therefore, paid $363,053 in estate taxes and sought a refund. The federal government in the U.S. refused her refund under DOMA.

Curiously, however, the federal government did not defend DOMA before the Supreme Court even while continuing to enforce Section 3 of the Act. The Barack Obama administration felt that classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The reason for adopting such double standards was that the Obama administration wanted to leave it to the judiciary to be the final arbiter of the constitutional claims raised. However, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives intervened in the litigation to defend the constitutionality of DOMA. Before the Supreme Court heard the matter, two lower courts—the District Court and the Court of Appeals for the Second Circuit—had decided the issue in Edith Windsor’s favour; yet the federal government did not comply with the courts’ orders. Meanwhile, New York, 11 other States, and the District of Columbia decided that same-sex couples should have the right to marry and so live with pride in themselves and their union, and in a status of equality with all other married persons.

The majority judges, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, found that DOMA enacted a directive applicable to over 1,000 federal statutes, and the whole realm of federal regulations, and that its operation was directed to injure the very class of persons that the laws of New York, and of 11 other States, had sought to protect. The majority judges held that the U.S. Constitution’s guarantee of equality must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group. The avowed purpose and practical effect of DOMA, according to them, were to impose a disadvantage, a separate status, and so a stigma upon all those who entered into same-sex marriages, made lawful by the unquestioned authority of the States.

By creating two contradictory marriage regimes within the same State, DOMA forced same-sex couples to live as married for the purpose of State law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State had found it proper to acknowledge and protect, the court ruled. This differentiation would demean the couple, whose moral and sexual choices the Constitution protected, and whose relationship the State had sought to dignify, and it humiliated tens of thousands of children now being raised by same-sex couples, the majority judges explained.

Further, DOMA prevented same-sex married couples from obtaining government health-care benefits they would otherwise receive; it raised the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses. The liberty protected by the Fifth Amendment’s (to the U.S. Constitution) Due Process Clause contains within it the prohibition against denying any person equal protection of the laws. Therefore, the majority judges had no difficulty in holding DOMA invalid.

In the second case, Hollingsworth et al. vs Perry et al. , the court held that the petitioners in the case did not have the standing to appeal against the District Court order that declared as unconstitutional Proposition 8, a ballot initiative passed by voters in California State amending the California Constitution to define marriage as a union between a man and a woman. The respondents in this case, same-sex couples who wished to marry, filed a suit in the federal court challenging Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. As in Windsor , in this case also, the public officials named as defendants refused to intervene and defend the law. But the official proponents of Proposition 8 intervened to defend it.

Article III of the U.S. Constitution confines the judicial power of federal courts to deciding actual “Cases” or “Controversies”. One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate his/her standing to do so. In other words, the litigant must seek a remedy for a personal and tangible harm. The petitioners’ only interest in this case was to vindicate the constitutional validity of a State law. The Supreme Court held, however, that such a “generalised grievance”—no matter how sincere—is insufficient to confer standing. The principle of standing, understood as locus standi , ensures that judges act as judges and do not engage in policymaking, which is properly left to elected representatives. It also seeks to ensure that the issue is capable of resolution through the judicial process.

As the majority judges’ opinion explains, it is not enough that the party invoking the power of the court has a keen interest in the issue; that party must also have “standing”, which requires, among other things, that the party had suffered a concrete and particularised injury. Since the petitioners did not have standing, the court admitted it had no authority to decide this case. Interestingly, in this case, the majority of five judges who delivered the verdict included two judges who found themselves dissenting in the Windsor case. They are Chief Justice John Roberts, and Antonin Scalia, joined by Ruth Ginsburg, Breyer, and Elena Kagan. Kennedy filed a dissenting opinion, in which Clarence Thomas, Samuel Alito, and Sonia Sotomayor joined.

Naz foundation case The question of standing, so decided by the majority judges of the U.S. Supreme Court, has raised the hopes of those expecting the Indian Supreme Court to rule against the critics of the Delhi High Court’s judgment in the Naz Foundation case. In that case, the High Court had ruled that Section 377 of the Indian Penal Code was unconstitutional for criminalising sexual relations among consenting same-sex adults. The Central government and the Delhi government, respondents in the Naz Foundation case, accepted the High Court’s verdict and refused to appeal against it in the Supreme Court.

However, some petitioners, claiming to represent some religious and other groups, managed to convince the Supreme Court to hear their appeal. The Indian Supreme Court, which completed the hearing in the appeal in March 2012, has not yet delivered its verdict. According to observers, the arguments before the Supreme Court in this case did not reflect a proper discussion on the third party appellants’ legal standing to maintain the appeal. As an astute observer remarked, “Naz is an artfully and elegantly woven decision. It requires no further embellishment. It should remain undisturbed.” There is considerable excitement over whether the U.S. Supreme Court’s decision in Perry will influence the Indian Supreme Court’s impending judgment in the Naz Foundation case.