The Supreme Court’s decision in United States v. Windsor to strike down a key part of the Defense of Marriage Act (DOMA), the 1996 federal law signed by President Clinton that defined marriage as between a man and a woman for the purpose of federal law, was historic. The Windsor opinion, even more so than the Courts decision in Hollingsworth v. Perry (decided the same day and paving the way for same-sex marriages to resume in California), is an important step toward marriage equality in the United States. But the opinion also revealed deep divisions among the justices regarding same-sex marriage, and makes clear that the most formidable obstacle to marriage equality may be the very same Supreme Court Justice that delivered this resounding victory to same-sex marriage proponents.
READ THE OPINION: United States v. Windsor
At issue in Windsor was Section 3 of DOMA, which amended the Dictionary Act in Title 1, §7, of the United States Code to define “marriage” as “only a legal union between one man and one woman and husband and wife,” and to define “spouse” as referring “only to a person of the opposite sex who is a husband or a wife.” In effect, as Rita Lin, a lawyer who argued another DOMA case, said, what Section 3 did was to perform “a find and replace of every instance of ‘spouse’ or ‘husband’ or ‘wife’ appears and changes it so that it’s ‘opposite sex husband’ or ‘opposite sex wife.’”
The decision to invalidate Section 3 of DOMA was 5-4, with the majority opinion written by conservative Justice Anthony Kennedy. Liberal Justices Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg joined Kennedy’s majority opinion. Conservative Justices Antonin Scalia, Samuel Alito, and John Roberts all filed dissenting opinions.
Despite invalidating DOMA, however, Kennedy’s opinion was evasive and, as Justice Scalia pointed out in his dissent, “legalistic argle-bargle.” Whether it is permissible for government (of any kind) to discriminate against same-sex relationships is an equal protection issue. And DOMA, as Kennedy recognized, “impose[d upon same-sex couples] a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.” This was the “avowed purpose and practical effect of the law.” In doing so, “DOMA writes inequality into the entire United States Code.”
But Kennedy, rather than analyzing DOMA under an equal protection framework, decided instead to ground the Court’s opinion on vague notions of federalism. The Supreme Court has long recognized that the “regulation of domestic relations” is “an area that has long been regarded as a virtual exclusive province of the States.” DOMA rejects this “long-established precept,” Kennedy wrote. “Because of its reach and extent,” DOMA “departs from this history and tradition of reliance on state law to define marriage.”
The federal government, according to Kennedy, has “no legitimate purpose” to interfere with the sound policy decisions of individual states. But this is precisely what DOMA did. Indeed, DOMA’s only purpose, according to Kennedy, was “to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.” By undermining the “public and private significance of state-sanctioned same-sex marriages,” relationships the “State has sought to dignify,” DOMA was in violation of the Fifth Amendment to the U.S. Constitution.
The entire argument Kennedy advances is intellectually problematic and internally incoherent. Scalia, in his dissent, rightly slammed Kennedy’s opinion as “scatter-shot.” This incoherence is problematic for Windsor’s precedential value. And it is reflective of the tension between federalism and equal protection, a tension that is at the heart of many of Justice Kennedy’s opinions, and one whose resolution may ultimately decide the fate of same-sex marriage in the United States.
In the near future, the Supreme Court will be called upon to decide the constitutional merits of a state’s prohibition of same-sex marriage – e.g., Alabama does not “recognize as valid any marriage of parties of the same sex.” Ala. Code §30-1-19(e) (2011). And while the constitutionality of such a provision was not before the Court in Windsor, the Justices opinions give insight into how the Supreme Court might resolve the issue.
The Windsor opinion made it abundantly clear that the Supreme Court, as it is currently comprised, contains at least four Justices staunchly committed to the preservation of “traditional marriage” and state-sanctioned discrimination.
While Chief Justice Roberts wrote in Windsor “only to highlight the limits of the majority’s holding and reasoning,” he made it clear that he believes that “[i]nterests in uniformity and stability amply justif[y]” continued discrimination against same-sex couples. Appealing to tradition, Roberts argued that Congress acted constitutionally in 1996 by retaining the traditional definition of marriage, one “that, at that point, had been adopted by every State in our Nation, and every nation in the world.”
Although Justice Alito recognized that same sex marriage “presents a highly emotional and important question of public policy,” he argued that whether government can discriminate against same-sex couples is “not a difficult question of constitutional law.” Alito wrote, “The Constitution does not guarantee the right to enter into a same-sex marriage. Indeed, no provision of the Constitution speaks to the issue.” This silence, according to Alito, should be enough to end the matter.
Justice Scalia’s opinion, of which Justice Thomas joined, argued that the Court has “no power under the Constitution to invalidate this democratically adopted legislation.” But then, in a breathtaking display of chutzpah, Scalia proceeded to explain why the Court should have upheld DOMA as constitutional. Scalia accused the majority of painting same-sex marriage opponents as “enemies of the human race.” He debated sodomy, and drew a connection between moral disapproval of same-sex marriage and society’s disapproval of “no-fault divorce, polygamy, or the consumption of alcohol.” Scalia’s dissent, in essence, was less a legal argument and more a plea for recognition that same-sex marriage opponents are “politically legitimate” and that there are “good people on all sides.”
On the other hand, it would appear that proponents of marriage equality can rely on the votes of Justices Kagan, Sotomayor, Breyer and Ginsburg, all of whom joined Kennedy’s opinion in Windsor but did not file separate concurring opinions. That leaves a 4-4 split. The spotlight, then, will again be upon Justice Anthony Kennedy.
In his dissenting opinion, Scalia lamented that the Court’s opinion was a mere contrivance, and that the majorities decision to confine its holding to the Federal Government was a mere pretense, “leaving the second, state-law shoe to be dropped later, maybe next Term.” Scalia sees the Windsor opinion as akin to the Court’s decision in Griswold v. Connecticut (1965), in which the court ruled unconstitutional a state law prohibiting the sale of contraceptives. Although the Griswold opinion addressed only the rights of a married couple to purchase contraceptives, Griswold‘s concept of privacy became the linchpin of Roe v. Wade in 1973. Scalia views Windsor in much the same light.
The invalidation of state-law prohibitions of same-sex marriage, however, is not the necessary result of the Windsor opinion. Any opinion invalidating a state-law prohibition must be based on equal protection grounds. And while the Windsor opinion expressed Kennedy’s deep misgivings about legislation aimed at demeaning same-sex couples, “whose moral and sexual choices the Constitution protects,” in Windsor<, federalism concerns trumped equal protection.
But if proponents of same-sex marriage are to be victorious in the next battle before the Supreme Court, equal protection must trump federalism. The future of same-sex marriage in the United States, therefore, very much rests in the hands of conservative Justice Anthony Kennedy, a man who has done more than any Justice with whom he has sat to buttress the sovereignty of state governments.
For the second, state-law shoe to drop, as Justice Scalia fears, Kennedy will have to abandon the strictures of his political philosophy and truly embrace the notion that all men (and women) are created equal.
“The Constitution’s guarantee of equality,” Kennedy wrote in Windsor, “‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” That this applies equally to all government should be a truth held by all as self-evident.