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.

Insofar as there was confusion about what Windsor meant at the time it was decided, the lower courts across the country have now effectively settled it. A survey of publicly available opinions shows that in the eight months since Windsor, 18 court decisions have addressed an issue of equality based on sexual orientation. And in those 18 cases, equality has won every single time. In other words, not a single court has agreed with Chief Justice Roberts that Windsor is merely about state versus federal power. Instead, each has used Windsor exactly as Justice Scalia “warned”—as a powerful precedent for equality.

This hasn’t all been about marriage. Twelve decisions have addressed a substantive aspect of marriage equality since Windsor, and equality has won in all 12—with the Virginia decision now joining decisions from Kentucky, New Mexico, Oklahoma, Utah, and West Virginia, and two decisions each in Illinois, New Jersey, and Ohio. But six other cases since Windsor have addressed different aspects of discrimination based on sexual orientation, such as discrimination on juries and employment benefits, and the side of equality has won in all six of those cases as well.

The tally is even starker when you look at the number of judges who have considered the issue.  Since Windsor, in these 18 decisions, 32 different judges have considered whether Windsor is merely about the relationship between the state and federal governments or whether it is about equality. And all 32 of them have found for equality. In other words, 32 accomplished, intelligent lawyers, appointed by Democrats and Republicans, whose job it is to read precedent, have ruled for equality. Not a single one has disagreed.

One other phenomenon has occurred post Windsor that bears mentioning here. In Virginia and Pennsylvania, state attorneys general tasked with defending their state’s same-sex marriage bans have also read Windsor to mean that the ban is unconstitutional. In New Jersey, Gov. Chris Christie abandoned the state’s appeal of a decision striking down the New Jersey marriage ban.  And now this week, Nevada’s attorney general, a Democrat, and its Republican governor, announced that they too, could not defend the state’s gay-marriage ban anymore. Why? Windsor. As the Nevada officials explained to the 9th Circuit, the Windsor decision “signifies that discrimination against same-sex couples is unconstitutional,” and thus the arguments that the state had made previously in support of its ban “cannot withstand legal scrutiny.” That means that not just courts, but also, increasingly, high state officials read the Windsor decision just the way Justice Scalia does: to prohibit inequality in marriage. As we witnessed this month in Virginia, the historic refusal to defend a same-sex marriage ban, followed by the judicial recognition that such a ban is unconstitutional, can unfold over a matter of mere weeks.

Whatever doubt there may have been about the legal predicate of the case following Windsor is now gone. The questions left in the wake of the decision don’t matter anymore. Thirty-two judges over 18 decisions make it crystal clear: Windsor, whether it intended to or not, is a powerful decision against discrimination, and for equality.

David S. Cohen, associate professor at the Drexel University Thomas R. Kline School of Law, is co-author of a forthcoming book about anti-abortion terrorism and was co-counsel for plaintiffs in Ballen v. Corbett. Follow him on Twitter.

Dahlia Lithwick writes about the courts and the law for Slate

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