While gay couples and their supporters are elated, many conservatives fail to understand that for them too, both Hollingsworth v. Perry and United States v. Windsor will have a largely positive impact. In the former case, the lack of standing leads to the resumption of same-sex marriage in California. The latter decision makes use of federalism and equal protection. It focuses on the animosity in the intent and practice of DOMA. It very importantly proves, according to Professor Randy Barnett, that federalism need not be favored only by conservatives. This is a very liberty-friendly trend.
In my last article I explained what judicial engagement is and why it would be a necessary component of the court’s ruling if same-sex marriage was to prevail. Engagement was likely a component in Hollingsworth and was absolutely a component in Windsor.
Hollingsworth v. Perry
In Hollingsworth v. Perry, or the “Proposition 8 case,” the court ruled that the petitioners did not have standing, which meant that the lower court’s ruling that Proposition 8 was unconstitutional was upheld.
The court decided against reviewing the Ninth Circuit Court’s decision, because the petitioners lacked standing to appeal. The court called the “petitioners’ arguments to the contrary … unpersuasive.” The court did not rule on the facts of the case or the law.
The current petitioners “had not been ordered to do or refrain from doing anything.” Rather, “their only interest was to vindicate the constitutional validity of a generally applicable California law.” The court called this a “generalized grievance,” and as such, “insufficient to confer standing.”
Eric Segall of Georgia State University explained the petitioners' interests are just like those of any person who supports the California constitutional amendment, as they have faced no injury. Affirming their standing would open the door to any person suing a state in federal court if he dislikes a law.
Had the court ruled on the constitutionality of Proposition 8 itself, rather than just standing, it would have acted as an activist court, setting a dangerous precedent. Rather, this could be categorized as either a decision of either restraint or engagement, as the court did not go out of its way to find a way or excuse to rule on Proposition 8 itself.
This in effect means that same-sex couples may once again marry in California, though this is the result of a lack of standing rather than the court favoring gay marriage.
United States v. Windsor
Professor Randy Barnett, who joined in the “Federalism Scholars” amicus brief to the Supreme Court in U.S. v. Windsor, expertly explains on SCOTUSBlog that because Justice Kennedy’s majority opinion is “novel,” it is bound to confuse people. Barnett explains that Kennedy utilized much of the same “federalist” logic found in the “Federalism Scholars” brief, “but with a significant twist that converted it from an enumerated powers into a ‘liberty’ argument.” Kennedy “used the interference with the traditional province of states to regulate marriage to justify heightened scrutiny under the Fifth Amendment’s Due Process Clause.”
Barnett explains the logic of Kennedy’s opinion in a few key points. First, “the definition and regulation of the right to marry is traditionally” left to the states and is not an enumerated power of Congress. Second, the intent and effect of DOMA is to inhibit this “function of states.” For these reasons, the court used “heightened scrutiny to evaluate the rationality of DOMA.” Finally, “this unusual deviation from the past practice of respecting state law definitions of marriage was improperly motivated by animus.”
In the majority opinion, Justice Kennedy invoked equal protection and detailed the unsound purposes of DOMA. He proves the sole purpose of DOMA was to harm a group, which may not justify a law mandating “disparate treatment of that group.” Furthermore, DOMA seeks to “deprive same-sex couples of the benefits” and the accompanying federal recognition of marriage by unnecessarily defining "marriage" rather than using the states' definitions. Allowing the federal government to treat a subset of legal marriages unequally is to “impose inequality.” He notes that the House of Representatives concluded DOMA disapproves of homosexuality and expresses that “heterosexuality better comports with traditional (especially Judeo-Christian) morality.”
Kennedy explained that DOMA infringes on federalism by seeking to “influence and interfere with” states’ decisions to permit same-sex marriage and to restrict freedom of same-sex couples in states where same-sex marriage is legal.
Barnett calls the decision a win for federalism and “noteworthy” in that “four liberal justices signed onto this federalism-laden analysis without the usual concurring opinion.” This implies more future federalism-friendly rulings. He notes that the court’s opinion is based on the lack of “federal interest in disregarding state laws defining marriage.” This is “a visible demonstration that federalism need not be just for conservatives.”
He explains this means that states can continue to have their own definitions of marriage, so long as the court’s explanation of the “irrationality of DOMA at the federal level is not used to undermine the constitutionality of refusals to recognize same-sex marriage by states.”
The way in which the court combines federalism and equal protection, and engaged these components with the facts of the case, indicated that the court used judicial engagement when ruling. A restrained court may have deferred to to government and upheld DOMA, so to preserve legislative intent. An activist court would have taken the opportunity to mandate nationwide same-sex marriage.