It’s Over: Gay Marriage Can’t Lose in the Courts

The law, lawyers, and the court.
Feb. 14 2014 10:43 AM

It’s Over: Gay Marriage Can’t Lose in the Courts

A perfect record for equality post-Windsor.

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Edie Windsor leaves the Supreme Court on March 27, 2013. Did the Windsor decision—striking down DOMA—pretty much strike down gay-marriage bans as well?

Photo by JEWEL SAMAD/AFP/Getty Images

“We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn't that what marriage is? ... I have lived long enough now to see big changes. The older generation's fears and prejudices have given way, and today's young people realize that if someone loves someone they have a right to marry. Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the ‘wrong kind of person’ for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people's religious beliefs over others. ... I support the freedom to marry for all. That's what Loving, and loving, are all about.”Mildred Loving, "Loving for All"

Last night, only days after hearing oral arguments in the case, a Virginia federal judge struck down the state ban on same-sex marriage, writing unequivocally that “[t]radition is revered in the Commonwealth, and often rightly so. However, tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia’s ban on interracial marriage.” The judge opened her opinion with the quote, above, from Mildred Loving, the plaintiff in the 1967 challenge to Virginia’s ban on interracial marriage. She thus joined a unanimous and ever-expanding collection of federal judges who have chosen to answer the question left up in the air by the Supreme Court last Spring: Did the Windsor decision—striking down the federal Defense of Marriage Act—pretty much strike down gay-marriage bans as well?

It didn’t have to play out this way. Once the elation of victory died down following the court’s Windsor decision in June, everyone found themselves asking the same question—what does this case mean for all of the other cases raising questions about gay and lesbian equality? The answer wasn’t 100 percent clear at the time. As he’s done in the past, Justice Anthony Kennedy authored a decision producing sweeping results, but rooted it in less than crystal clear reasoning. This was because Windsor has two independent parts that barely speak to one another.

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The first part is all about federalism, not equality. Kennedy painstakingly explained that the federal Defense of Marriage Act offended basic principles of states’ rights because, historically, the states have always defined marriage and the federal government just goes along for the ride. By defining marriage for the federal government as only between a man and a woman, DOMA had infringed on the sovereignty of the states that define marriage otherwise, like New York did in Windsor, by including two women in its definition of marriage.

Justice Kennedy could have stopped there, but he didn’t. Instead, he wrote a second section all about equality. This part of the opinion found that the federal law was unconstitutional because it offended basic principles of equality. With a purpose to harm same-sex married couples and a wide-ranging detrimental effect on their lives, Kennedy wrote, DOMA violated the constitutional principle that a law cannot be based on hatred toward any one particular group.

Were these two parts independent bases for the decision? Or did one rely on the other? The answers to these questions have significant ramifications for gay and lesbian equality. If the equality principle from the second half of the opinion can be seen as the basis for the decision, state bans on same-sex marriage are certain to be unconstitutional. But, if the equality principle is only powerful when combined with concerns about the federal government overstepping its bounds, then maybe states can continue to define marriage as they see fit, and the federal government then has to go along. Under this interpretation, Windsor might even have been a decision that somewhat supported state bans on same-sex marriage: States have the right to choose.

It was clear when Windsor came down that the court itself was perplexed as to what the case implied for future gay-marriage litigation. The two interpretations were battled out in the dissenting opinions. Chief Justice John Roberts wrote a short dissenting opinion arguing that the federalism aspect of Windsor was essential to the case and that the case cannot possibly mean that state bans on same-sex marriage are unconstitutional as well. Justice Antonin Scalia, writing a separate dissenting opinion, used the power of his formidable sarcasm to show that Justice Kennedy’s equality opinion would throw open the floodgates for lower courts to find bans on same-sex marriage unconstitutional. To Scalia, this was conclusive evidence that the majority opinion was wrong. To the rest of us, it was conclusive evidence that Windsor might mean what Scalia thought it meant.

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