Those who seek to achieve marriage equality by any means are right to celebrate yesterday’s Supreme Court rulings denying standing to defenders of Proposition 8 and striking down part of the Defense of Marriage Act (DOMA). However, those who want the judicial branch of government to secure gay Americans’ constitutional entitlement to the equal protection of the laws based on sound legal reasoning should be disappointed by the Court’s decision in the DOMA case. Unfortunately, the majority opinion in United States v. Windsor is confused and disingenuous. Let us count the ways.
First, Justice Anthony Kennedy’s majority opinion focuses too much on the states’ power to define marriage.
This focus is misplaced, for the core issue in the case is the civil-rights question of equal protection, not the federalism question of state autonomy. Part III of the majority opinion seems to suggest that discriminating against same-sex couples is unconstitutional only because some states have (finally) begun recognizing same-sex marriages, and in those states, same-sex married couples therefore lack federal legal benefits that opposite-sex ones enjoy. This leaves the perverse impression that DOMA would still be constitutional today if only no state government had yet bothered to recognize same-sex marriages. After all, when DOMA was first passed in 1996, all 50 states still restricted legal marriage to heterosexual couples. Anyone considered legally married by any state was considered married by — and received benefits from — Uncle Sam as well. Gays were consistently excluded from the marriage franchise at both the state and federal levels. Thus the asymmetry between the state and federal treatments of marriage on which the Windsor Court based its ruling did not yet exist. Indeed, Justice Kennedy’s reasoning unwittingly suggests that DOMA really only became unconstitutional once some state governments began bringing de facto same-sex marriages under the de jure tent of civil marriage.
It’s hard to see why the asymmetry between federal and state definitions of marriage matters at all. The principle of equal protection holds that a single given government can’t invidiously discriminate against certain protected classes of people, not that two different governments can’t treat the same population differently. The Court should have focused on the fact that (as it eventually got around to explaining) DOMA discriminates against gay couples, not on the fact that the state of New York recently decided to recognize and protect the population against which DOMA discriminates. DOMA would have been unconstitutionally discriminatory even if not a single state government had yet gotten with the marriage-equality program.
Second, the Windsor decision is downright incoherent.
It describes the challenged section of DOMA as a “federal intrusion on state power” and complains that DOMA was designed to try to intimidate states into abandoning any plans to recognize same-sex marriages. This suggests that the majority opinion is based on federalism principles — an implication that the Court later contradicts, claiming that it is “unnecessary” to decide whether such federal finger-wagging at the states is unconstitutional. The Justices in the Windsor majority seem to have been unable to make up their minds: was this a federalism case or an individual-rights one?
The Court further muddied these waters by ending with the disclaimer that “[t]his opinion and its holding are confined to those lawful marriages,” i.e., the same-sex marriages that have already been recognized and licensed in 12 states. In other words, the Court isn’t yet ready to take on the question of whether the states can constitutionally lock gay couples out of the institution of legal marriage. Yet it’s hard to see how the Court’s substantive arguments for marriage equality wouldn’t also logically apply to the states. (This is especially the case since the Equal Protection Clause of the Fourteenth Amendment refers on its face to the states exclusively, and has only been "reverse incorporated" to apply to the federal government since 1954.)
In Windsor, the Supreme Court appears to have bent over backwards to avoid biting off more than it thinks it can chew politically. Justice Kennedy probably realizes that requiring all 51 sovereign American governments to recognize same-sex marriages at one swoop would probably ignite a political firestorm and energize opponents of marriage equality across the nation. So he narrowly tailored this opinion to the specific case at hand, leaving the question of state discrimination against gay couples for later. Unfortunately, in the process, Justice Kennedy has engaged in disingenuous hairsplitting, employing reasoning that — if given persuasive value — will probably compel the Court to require the states to recognize gay marriages a few years hence anyway. Surely same-sex couples in gay-unfriendly states will waste little time filing challenges to state marriage laws before long. Such cases will arrive on the Supreme Court’s docket within the next few years. Justice Kennedy et. al. have only delayed the inevitable, putting off the day when the Court will have to confront the marriage equality question head-on, with no procedural escape hatch (such as the one the Court used to duck the issues in the Proposition 8 case). In the meantime, the Windsor majority has only confused the issue — and given the Court’s most acerbic wordsmith, Justice Antonin Scalia, a juicy target for well-deserved ridicule.
This looks like another case of the Supreme Court — or the author of the majority opinion in a hotly disputed case, anyway — trying to split the proverbial baby. On the one hand, Justice Kennedy has sought to do what he believes (and what I agree) to be the right thing: requiring American governments to treat straight and gay Americans equally. On the other hand, he has striven to safeguard the Supreme Court’s reputation in the public’s eye by trying to avoid exacerbating a divisive national controversy. When the Court takes this tack, the outcomes usually aren’t very pretty, at least in terms of the persuasiveness and logic of the resulting rulings (see NFIB v. Sebelius).
The Supreme Court should abandon its misguided efforts to preserve its own institutional legitimacy and avoid political backlash. It is not the job of unelected judges to defuse political bombs or to bind up the nation’s wounds; we have politicians, activists, spiritual leaders and other inspirational public figures for that. The Court should simply do what it does best: Say what the law is, apply it, and let the political chips fall where they may.