“We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”
With those ringing words, Judge John E. Jones, who sits on the federal court in central Pennsylvania, concluded his opinion today in Whitewood v. Wolf, striking down yet another state Defense of Marriage Act. As Judge Jones noted, his decision is in accord with decisions reached by 12 other lower court judges. (Score: 12-0.) The couples in this case fell into two categories that the law affected—those who wanted to get married in Pennsylvania but couldn’t, and those who are already married in another state but whose marriages Pennsylvania has refused to recognize. Both provisions of the law were struck down.
While same-sex couples are doubtless already rushing to county clerks’ offices for marriage licenses, the victory is likely to be delayed for some time. That’s because the U.S. Supreme Court stayed the lower court’s decision in the first post-Windsor marriage equality case, out of Utah. And since then, other judges have little choice but to follow suit and issue similar stays. As a practical matter, we won’t have finality until one of these cases is decided by the high court, probably in about two years.
But delayed or not, there are several important takeaways from this decision.
The post-Windsor avalanche continues. In deciding United States v. Windsor last June, the Supreme Court struck down the Defense of Marriage Act, finding that Congress had acted improperly and with anti-gay sentiment in “protecting” marriage by refusing to grant federal benefits even to validly married same-sex couples. But it remained to be seen whether the opinion, written by Justice Anthony Kennedy, would be interpreted to invalidate all state laws that fenced out same-sex couples.
On the one hand, Kennedy spoke of how unusual it was for Congress to butt in to the states’ business of defining marriage; for him, this oddball feature of DOMA was enough, all by itself, to show an anti-gay agenda. If that was the most important feature of the case, then state laws fencing out gay couples should have survived. On the other hand, Windsor is an opinion laced with rhetoric about the effect of DOMA on the “dignity” of same-sex couples and their children, and it makes the obvious point that these laws humiliate and stigmatize these families.
During last week’s hearing in yet another marriage equality case, also in Pennsylvania, Judge Mary McLaughlin mused aloud about the challenges for courts in resolving the tension between these two strands of Windsor. But that tension increasingly seems to be theoretical. All the courts that have struck down these state DOMA laws have found the denial of equality and dignity to be ascendant over state’s rights.
The judges are having fun with Justice Antonin Scalia. Justice Scalia’s dissents can be a joy to read, even for those who strongly disagree with him. He’s a very colorful writer and adept at nastily skewering the majority position (whether or not he’s right). But the spate of post-Windsor decisions might have him rethinking his approach. In several of these cases, judges have homed in on Scalia’s Windsor dissent, where he quite effectively repurposes the majority’s language striking down DOMA and shows how that same language can be used to defeat state DOMAs.
Judge Jones went to a different part of the Windsor dissent, where Justice Scalia noted that the court was effectively applying a high degree of scrutiny to DOMA. In Scalia’s interpretation of what the court was doing, Judge Jones found “tea leaves” suggesting “the application of scrutiny more exacting than deferential.”
Plaintiffs won on both liberty and equality arguments. Early on, the marriage equality litigation focused on the denial of equality to same-sex couples. That was thought to be a more sympathetic strategy than trying to claim that the fundamental right to marry (a liberty interest, constitutionally speaking) extended to same-sex marriages. That’s because the Supreme Court has sometimes defined “fundamental rights” quite narrowly and limited those rights to those who were historically protected. But increasingly, courts are finding that the fundamental right to marry means a right to marry the person of one’s choice, history aside. That’s what Judge Jones held, with pointed reference to Loving v. Virginia, where the high court struck down an anti-miscegenation law. That states had long barred interracial marriages didn’t make Virginia’s historical choice acceptable, and it’s no longer acceptable in the same-sex marriage context, either.
The plaintiffs also won big on their equality arguments. As suggested in the discussion of Justice Scalia’s dissent, Judge Jones found that discrimination based on sexual orientation is entitled to what courts call “heightened scrutiny.” This issue has been kicking around for a couple of decades (at least), and still hasn’t been resolved by the Supreme Court. But Judge Jones agreed with other courts that have read the tea leaves, and felt empowered to apply this higher standard of review. Once the court did that …
The justifications for excluding same-sex couples from marriage totally melted away. The state’s effort to justify the law was lame and half-hearted in the first place. It said, essentially: “Let’s not get into whether the child-rearing and procreation arguments actually hold a drop of water. It’s enough that the legislature thought they did.” That kind of “no basis needed” review likely wouldn’t have been enough even if the court had been quite deferential—which it wasn’t. As the court pointed out, the defendants didn’t even try to state that the justifications were “important,” just that they were “legitimate.” Good-bye.
Perhaps most significantly, marriage equality is now part of mainstream thought and language. The legal analysis in this case is strong and well-supported by precedent, but what struck me in reading it was how normal and, yes, traditional, same-sex marriages have become. In the beginning, the idea of marriage equality was both traditional and radical. But read Judge Jones’ opinion to get a sense of how snugly same-sex couples have by now become embedded within the mainstream mores of marriage. Notably, in vividly describing the lives lived and legal deprivations experienced by the many couples before him, Judge Jones divided his discussion into sections titled “For better, for worse”; “For richer, for poorer”; “In sickness and in health”; and “Until death do us part.”
It’s true that this battle isn’t over until the Supreme Court says it is. But it sure feels over, as courts are lining up to declare that they will no longer be captives to an indefensible orthodoxy. The ash heap of history awaits.