Edith Windsor has a big tax refund coming, and other LGBT married couples have won a victory for their relationships with the recent SCOTUS rulings in US v Windsor and Hollingsworth v Perry. But lots of questions remain in the wake of the demise of DOMA.
For example, if you’re a college student applying for financial aid, you are required to fill out the Free Application for Federal Student Aid (FAFSA), which functions as a standardized form to determine how much a student should be required to contribute to their college education, how much their family should contribute, how much their parents should contribute, and to what extent the student might qualify for federal financial aid programs. It also is used by individual school to assess a student’s qualifications for various state, local, and institutional aid programs.
Under DOMA, if you were in a same-sex marriage, or your parents were a same-sex married couple, you were told to fill out this form as if you and/or your parents were single. Now, though, US v Windsor means that it does not matter to the federal government whether you (or your parents) are in a same-sex marriage or an opposite-sex marriage — you fill out the form to reflect the marriage license you (they) have.
But what happens if you are going to school in a state that prohibits recognition of same-sex marriages? What if the laws say something like “not one penny of state funds shall be spent in any way that would imply recognition of such marriages”? You know, a state like
Kansas State Constitution
Article 15: Other Matters
Section 16: Marriage.
- (a) The marriage contract is to be considered in law as a civil contract. Marriage shall be constituted by one man and one woman only. All other marriages are declared to be contrary to the public policy of this state and are void.
- (b) No relationship, other than a marriage, shall be recognized by the state as entitling the parties to the rights or incidents of marriage.
The author of this constitutional provision was Tim Huelskamp, who now sits in Congress as the US Representative from the western two-thirds of Kansas, and he’s already proclaiming that Windsor does not trump his work as far as Kansas is concerned — and that’s the kicker in the world in which US v Windsor replaces DOMA as federal law. Going back to the financial aid example, while the University of Kansas cannot force the federal government to use DOMA to decide what federal aid programs you do and do not qualify for, the university is also prohibited from treating same-sex marriages equally when it comes to state and institutional aid programs by the state constitution.
How individual financial aid officers will react to this mess is up to them, but with a reactionary state legislature and governor looking over their shoulders (and with them already being on record as not being happy with the state universities as a matter of general principles), KU, Kansas State, and other state colleges and universities will likely be hamstrung by the fact that Kansas has chosen to enshrine discrimination in their state constitution and SCOTUS declined to address that matter. No consideration of your marriage when it comes to state-based financial aid for you!
And it’s not just financial aid. Let’s go over to the university housing office.
Student: I’d like married student housing, please. Here’s a copy of my marriage license.
Housing Office staff: OK. *pause* Oh. *pause* I see your marriage license comes from Iowa, and you are a same-sex couple. *pause* I’m sorry, but according to the state constitution, we can’t give you married student housing.
Or go over to the university health service. You can get in the door, but not your spouse. Maybe you and your spouse have a child — but if your spouse was the biological parent and not you, your child can’t go to the university health service either.
Or go to the parking office. The nice person behind the counter politely informs you that you can get a parking sticker for your car, but if your name isn’t on the car’s title, you can’t get one for your spouse’s car. For that matter, if your name isn’t on the title for the car you drive, you can’t get a parking sticker for that car either.
Or go to your academic department’s main office. You pick up the “beginning of the school year” packet of information, and notice an invitation to a “welcome/welcome back” departmental picnic. “Families welcome!” says the flyer, but after your experience at the financial aid office, the housing office, and the parking office, do you really think that state money will be allowed to be spent on food and beverages for your spouse and child? If you have an enlightened department chair, you and your family might be welcomed anyway, but if they want to be jerks about it, they’ll give you the same answer you got elsewhere on campus: your family still doesn’t count as a real family.
And according to the Kansas State Constitution, Article 15, Section 16, they’d be right. They’d be bigoted, discriminatory, and outrageously inhospitable, but they’d be legally right. Section 16 says that you, your spouse, and your child get no “rights or incidents” of marriage if your marriage doesn’t fit their discriminatory definition. No state financial aid, no married student housing, no parking permits, and no brats and beer at the departmental party. If being married is a requirement for something provided with state funds, your spouse and family is still screwed.
Anthony Kennedy’s words in the majority opinion in Windsor (p. 25 of the opinion) are powerful:
What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.
If DOMA at the federal level is unconstitutional because its demeaning purpose and effects violate the Fifth Amendment, the same can be said of Article 15, Section 16 of the Kansas State Constitution. The purpose in adopting it was plain, and remains plain as Rep. Huelskamp so eloquently demonstrates, and yet SCOTUS decided they’d done enough before going on their summer break, and declined to extend their legal logic to its logical conclusion by striking down similar state constitutional and legal provisions. Given that SCOTUS also just acted to decline to take cases challenging these non-federal laws, this is a feature, not a bug. As Lyle Denniston of SCOTUSblog noted,
The Court denied review Thursday in a total of ten pending cases that dealt with same-sex marriage. Eight of those cases involved the constitutionality of the federal Defense of Marriage Act’s Section 3 – the provision on access to federal benefits that the Justices struck down on Wednesday. . . [Two of the others] went beyond the DOMA controversy, and involved state laws on same-sex marriage. The Court’s refusal to hear those cases could be interpreted as a signal that it is not ready to move on to the core constitutional question over whether gays and lesbians have a right to be treated equally in access to marriage itself, or to public benefits that go with marriage.
Don’t get me wrong — I’m happy that Edith Windsor is going to get a big tax refund, with interest. I’m happy that in a growing number of states, marriage equality is true at both the federal and state level. I’m happy that federal employees in same-sex marriages are getting a fair shake on their federal employment benefits. But for anyone who isn’t in one of those states, you’re still a long way from equal — even if you work for a gay-friendly company or the federal government. Lots and lots of questions remain, and sorting out the answers will be sticky indeed.
In a week when SCOTUS badly damaged the Voting Rights Act and took aim at affirmative action, Windsor and Perry stand as lonely signs of hope. Yes, there was progress made, but not enough — not nearly enough.
There’s still a lot of work to do. Just ask LGBT sort-of-but-not-really-married students at places like the University of Kansas.
Photo by Jamison Wieser and used under Creative Commons generic license.