Supreme Court 2013: The Year in Review

Kennedy’s DOMA Opinion Is a Historic, Thrilling, Full-Throated Stand for Equality
An email conversation about the news of the day.
June 26 2013 1:26 PM

Supreme Court 2013: The Year in Review


Kennedy’s DOMA opinion is a historic, thrilling, full-throated stand for equality.

U.S. Supreme Court Justice Anthony Kennedy testifies about judicial security and independence before the Senate Judiciary Committee on Capitol Hill in Washington February 14, 2007.
Anthony Kennedy DOMA opinion is more about individual rights than states' rights.

Photo by Kevin Lamarque/Reuters

It’s a rare moment when a court can write a stream of words and make the lives of many thousands of people instantly better. That’s what five Supreme Court justices have done today by striking down the Defense of Marriage Act. Their historic, tremendously exciting, and full-throated stand for equality will bring federal benefits raining down on legally married gay couples in a dozen states—and resonate far beyond even that important change.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Justice Anthony Kennedy wrote the majority opinion in this 5–4 case, joined by Breyer, Ginsburg, Kagan, and Sotomayor. You could say that he has been writing his way to this day since 1996, when he ruled against a Colorado law that took away rights for gay people granted by a local ordinance. Kennedy established a principle then that was key to his ruling Wednesday: The government may not single out a group it disapproves of for injurious treatment. In 2003—10 years exactly from today—Kennedy, again joined by the court’s liberals, struck down state laws that criminalize sodomy in the name of liberty and personal dignity. Today he used the word dignity nine times, by my count, this time joining it to the concept of liberty the court has now embraced.

The constitutional flaw in DOMA, Kennedy wrote, was that its enactment and text demonstrate “interference with the equal dignity of same-sex marriages.” This dignity was conferred by states like New York (now numbering 12), which recognize same-sex marriage. DOMA stomped into this domain of domestic relations “to identify a subset of state-sanctioned marriages and make them unequal,” Kennedy wrote. “The principal purpose is to impose inequality, not for other reasons like governmental efficiency.” Then there is this classic Kennedy line: “Responsibilities, as well as rights, enhance the dignity and integrity of the person.” And the opinion’s ringing conclusion:

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”


Kennedy could have put most of the weight of striking down DOMA on the states’ “exercise of their sovereign power,” in the domain of domestic relations. That’s in the opinion, but it’s secondary. That fulfills the hopes of the gay rights lawyers who chose this case with such care, as the first step on the path to a constitutional right to gay marriage in every state. This case is about federalism but it is also about equal rights.

Eric, you point out that Kennedy doesn’t designate gay people as a suspect class—the protected status for a group, based on race, religion, and to a large degree gender that makes courts especially leery of laws that treat them differently. And you think he’s being vague, in the end, about the legal underpinnings for today’s decision. But I think the groundwork Kennedy laid in the Colorado case (Romer v. Evans) and in Lawrence v. Texas is more solid than you do. The purpose of DOMA was about stigma and what the court has called “animus” against one group, for no reason other than dislike (which, really, amounts to prejudice). In my favorite moment of the argument in March, Justice Elena Kagan pointed out that DOMA “does something that’s really never been done before,” continuing, “I’m going to quote from the House report here: ‘Congress decided to reflect and honor collective moral judgment and to express moral disapproval of homosexuality.’ ”

She took the lawyer arguing to uphold DOMA, Bush Solicitor General Paul Clement, by surprise. “Does the House report say that?” Clement asked, before catching himself: “Of course the House report says that. And if that’s enough to invalidate the statute, then you should invalidate the statute.” He called it right there.

More from me soon on the dissents in the DOMA case, and the outcome in the California case—which Walter and perhaps even Slate, through him, was instrumental in bringing about!

Watch reactions across the country as the Supreme Court struck down DOMA:



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