The pair of rulings Wednesday morning on the Defense of Marriage Act and California’s Proposition 8 represent a double victory for Connecticut’s economy even though they fall short of delivering the right-to-marry order that many had hoped to see.
In fact, the rulings help Connecticut precisely because they don’t confer same-sex marriage rights across the land. In striking down the DOMA, the narrow, 5-4 majority said the federal government cannot take away a legal standing that states choose to allow.
Excerpt of the opinion from SCOTUS Blog:
The federal statute…for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.
That means states such as Texas and South Dakota, whose governors traveled to Connecticut last week to poach our businesses, are still free to deny same-sex rights. And that gives business owners who live in Connecticut one more factor to think about as they weigh staying or leaving.
Do they want themselves and their employees to live in a place that restricts civil rights? And even if they don’t care about gay rights or if they oppose same-sex marriage, they will have to consider that many potential employees won’t move to states that are less progressive.
And the decision is a double victory because it says that for those states that do confer marriage rights, the federal government can’t take those rights away. That means Social Security and other benefits, and it means there will be a rush at the stroke of midnight on Year’s Eve for married couples of the same sex to become the first to file federal income taxes jointly.
This is the legal opposite of Roe v. Wade, in which the Supreme Court in 1973 said no state may deny reasonable rights to abortion. As we saw in Texas Tuesday night, states are still debating what abortion rights are reasonable 40 years later, but the point is, the court has denied states a lot of leeway in setting abortion rules.
So, yes, an overturning of Roe v. Wade would also help Connecticut, as it would let states decide whether to confer abortion rights, and we all know what places such as Texas and South Dakota would do.
“From a narrow perspective of what helps Connecticut, this ruling is what helps Connecticut,” said UConn economist Fred V. Carstensen. He added that because big companies already bless same-sex unions in their employment policies, “in the short run, it may make the 12 states that are hospitalble to gay marriage more attractive to Fortune 500 companies.”
This is just one of many factors businesses must weigh, and not the biggest one by a long shot. So we’re not going to see a flood of people and companies into the gay-marriage states. But Carstensen said, in a comment that flies in the face of what we’re seeing these days, “The states that are more progressive…are going to be the winners.”
I first heard the economic argument about Roe v. Wade from Lewis Mandell, an economist and associate dean at the UConn business school who left in the mid-90s. It sounded at first like a crackpot theory or a joke, but it isn’t. Consider that much of the industrial move to the low-cost South in the ’60s and 70s coincided with the Voting Rights Act and the Civil rights Act, backed up by a series of crucial rulings by the Warren Court.
And if you think recruitment of progressive-minded people doesn’t matter to businesses, think again. We would not be here today talking about federal gay marriage rights if it weren’t for those Fortune 500 companies, which offered health benefits to same-sex couples in the ’90s as part of their desperate search for top-flight, educated workers — long before the first state blessed the first gay marriage.
Now the baby boomers are hitting age 65 at the rate of 10,000 a day, and soon the United States will again be a place where employees can call their own shots — maybe even in slow-growth states like Connecticut.
If those Gen-Xers and Gen-Yers can see a big difference between states, they might just choose to avoid what many perceive as backward places. And gays and lesbians tend to have more education and income than the population as a whole, according to some research.
As it happens, many of the states that are lowest-cost for companies, the red states, will be the ones that restrict abortion rights, deny same-sex marriage, sanction school prayer and a religious curriculum, ban stem-cell research, keep the death penalty and shun gun control. Personally, I oppose Connecticut’s new ban on semiautomatic rifles that have a pistol grip, but in general I and many other people would not choose to live in a state that had a conservative social agenda.
The California ruling in the Proposition 8 case adds to the state’s rights canon, by remanding the decision back to California rather than striking down the ban on same-sex marriage outright. It isn’t every day that Justice Kagan joins with Justice Scalia.
From SCOTUS Blog:
Here’s a Plain English take on Hollingsworth v. Perry, the challenge to the constitutionality of California’s Proposition 8, which bans same-sex marriage: After the two same-sex couples filed their challenge to Proposition 8 in federal court in California, the California government officials who would normally have defended the law in court, declined to do so. So the proponents of Proposition 8 stepped in to defend the law, and the California Supreme Court (in response to a request by the lower court) ruled that they could do so under state law. But today the Supreme Court held that the proponents do not have the legal right to defend the law in court. As a result, it held, the decision by the U.S. Court of Appeals for the Ninth Circuit, the intermediate appellate court, has no legal force, and it sent the case back to that court with instructions for it to dismiss the case.
Wednesday’s Supreme court ruling confirmed that states have a right to set a social agenda, and that’s part of the reason Connecticut should celebrate. “This puts another arrow in our quiver,” Carstensen said.
Put another way, we need all the help we can get.