Tying Windsor’s knot

Those states which do not recognise same-sex marriage will not be forced to do so after this week's decisions. But for how long?
Dwight G. Duncan | Jun 28 2013 | comment  



On the final day of its term the US Supreme Court, in the United States v Windsor, struck down Section 3 of the Federal Defense of Marriage Act (DOMA), which had defined marriage for purposes of Federal law as that between a man and a woman. The 5-4 majority opinion, written by Justice Anthony Kennedy, said that the regulation of marriage had traditionally been a matter of state law, and that the Federal definition was a matter of invidious discrimination that violated the due process clause of the Fifth Amendment, which incorporates the requirement of equal protection of the laws.

Kennedy, as usual, was the swing vote and the four liberals who joined him perhaps didn’t have the heart to tell him that his opinion was a hodge-podge of legal ideas and judgmental sentiment, without a clear legal standard or argument.

In this case, the result is what mattered.

Kennedy wrote that “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.” If the traditional understanding of marriage as conjugal in character can be characterized as injurious and insulting, the limitation to those in lawful same-sex marriages, as opposed to those in intimate same-sex relationships, would seem, to say the least, arbitrary.

Chief Justice Roberts, in dissent, takes issue with the majority’s imputation of sinister motive in enacting DOMA. Justice Scalia, in dissent, points out that “to defend traditional marriage is not to condemn, demean or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions.”

The US v. Windsor, did not address Section 2 of DOMA, which permits states under the Full Faith and Credit clause of the Constitution to refuse to recognize same-sex marriages recognized by other states. In viewing marriage as essentially an institution of state law, the Windsor case thus leaves intact the majority of states' definition of marriage. A Federal constitutional challenge to that provision, and to the other states that define marriage as only between a man and a woman, will have to wait for another day.

The other case decided this week, Hollingsworth v Perry,  dealt with California's Proposition 8. The Court essentially dismissed the appeal because the parties from California who were defending the law did not have standing to appeal against the Federal district court's order that Proposition 8 violated the Federal constitution.

When California’s Governor and Attorney-General declined to defend the state constitutional initiative that defined marriage as only between a man and a woman, citizens who backed the initiative had intervened to defend it. Chief Justice Roberts’ majority opinion thus refused to reach the merits of the state constitutional definition of marriage.

Justice Kennedy, this time in dissent from the 5-4 jurisdictional ruling, says that “the Court’s reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials—the same officials who would not defend the initiative, an injury the Court now leaves unremedied.” Of course, had the Court decided the jurisdictional issue that way, then Justice Kennedy would have once again been the swing vote on the merits.

But in leaving intact the trial court's order preventing enforcement of Proposition 8, at least as to the parties, California's Proposition 8 becomes a dead letter. As I wrote here three years ago at the time of that ruling,

“Judge Walker wrote a firewall of an opinion, in which no matter what judicial standard applied, gays would always win. This was in keeping with the show-trial nature of the proceedings, in which so-called experts were called to testify -- who just happened to be partisans on the issues involved. The two experts called by the defenders of the law were deemed of little or no credibility by the court. The fact that Judge Walker was himself reported to be homosexual was of no legal consequence or relevance.”

I agree with Justice Alito's assessment, dissenting in both cases, to the effect that the Supreme Court, as a matter of interpreting the constitution, has impermissibly decided between two competing understandings of marriage, the conjugal or traditional one, that between a man and a woman, and what he calls the "consent-based" view that defines "marriage as the solemnization of mutual commitment--marked by strong emotional attachment and sexual attraction--between two persons." The latter view is little more than a form of friendship recognized by the police, or about making adults feel good about themselves for a time, but is totally disconnected from any intrinsic relation to child-bearing and providing children with both a mother and a father.

 Justice Alito also draws attention to "an arrogant legal culture that has lost all appreciation of its own limitations" that characterized some of the proponents of same-sex marriage. If you consider that same-sex marriage was recognized nowhere in the world until the year 2000 in the Netherlands, and nowhere in the United States until 2004 in Massachusetts, that observation seems about right.

So the Court has not given us a Roe v. Wade of same-sex marriage. But in holding the Federal definition of marriage to be little more than bigotry, it has moved us closer to that possibility. As Justice Scalia wrote, in dissent, this leaves "the second, state-law shoe to be dropped later, maybe next Term." For now, though, the majority of states that have chosen not to recognize same-sex marriage can continue to do so.

Dwight Duncan is professor of law at University of Massachusetts School of Law Dartmouth.  



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