By Clifford J. Rosky
Associate Professor of Law
University of Utah’s S.J. Quinney College of Law
Yesterday morning, the Supreme Court brought an end to the federal Defense of Marriage Act and California’s Proposition 8. In United States v. Windsor, the Court held that DOMA violates the liberty and equality protections afforded by the Fifth Amendment. In Hollingsworth v. Perry, the Court held that the sponsors of Prop 8 did not have legal standing to defend the law. Before long, same-sex couples will once again be marrying in California. In addition, the federal government will now grant equal rights and responsibilities to same-sex couples married in California, and in any of the other 12 states and the District of Columbia where same-sex marriage is already recognized.
By any measure, today’s rulings represent a pair of breathtaking victories for the LGBT movement. As Professor Suzanne Goldberg observed in her earlier post, DOMA and Prop 8 were the country’s most prominent antigay laws. Both Prop 8 and the heart of DOMA are now dead and gone, and in the grand scheme of things, this turnaround seems improbably quick. In 1996, Congress passed DOMA by overwhelming margins, and the bill was signed into law by President Clinton in the wake of a national backlash against the possibility of same-sex marriage in Hawaii. In 2008, California voters passed Prop 8 by a narrower margin, overturning a state court ruling that had legalized same-sex marriage in California.
Putting aside the legal analysis of today’s rulings for a moment, the impact of the two judgments on the everyday life of LGBT people is profound. Federal law grants more than 1,000 benefits to married couples, and more than 100,000 same-sex couples are legally married. With the demise of Prop 8, 30 percent of the country lives in a state where same-sex marriage is legal.
More than anything else, this is how progress happens—in the interactions of everyday life. People meet same-sex couples as neighbors, coworkers, and friends, and they realize that our differences don’t need to divide us. A study conducted by the Williams Institute estimates that in the next three years, 37,000 same-sex couples will marry in California, and the state’s economy will gain nearly $500 million in new revenues. That’s a tremendous number of family and friends, not to mention photographers and caterers. By experience, people will learn that the sky does not fall at same-sex weddings—and sadly, the cake tastes no better.
Legally speaking, however, the Perry ruling is not likely to significantly influence the push for marriage equality in other states. Because the Court held that the sponsors of Prop 8 did not have standing to defend the law, it did not address the question on everyone’s mind—whether other state laws that ban same-sex couples from marrying are constitutional.
In Windsor, however, Justice Kennedy sent strong signals that the answer is no—that sooner or later, the Supreme Court will rule that all laws against same-sex marriage are unconstitutional. In remarkably direct terms, Justice Kennedy wrote that “DOMA writes inequality into the entire United States Code,” because “it tells [same-sex] couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.” In intensely personal language, he concluded that DOMA “demeans” same-sex couples, “[a]nd it humiliates tens of thousands of children now being raised by same-sex couples.” As if that were not enough, he added that “DOMA also brings financial harm to children of same-sex couples” by raising “the cost of health care for families” and denying “benefits allowed to families upon the loss of a spouse and parent.”
Above all, Justice Kennedy’s references to children embody the LGBT movement’s incredible progress during the last several decades. Since the 1970s, opponents have repeatedly claimed that same-sex marriage is “harmful to children,” because “every child needs a mother and a father.” In today’s ruling, the contrast between then and now could not be any clearer: Now it is not gay couples but Congress – Congress! – that is “humiliating” and “harming” kids. In his dissent, Justice Scalia frankly admitted that this passage of Windsor was the handwriting on the wall. In an unusual move, he demonstrated how the Court’s opinion could easily be tweaked – by inserting “this state’s law” in place of “DOMA” – to strike down all of the country’s remaining laws against same-sex marriage.
I have to admit, all of this language in Windsor came as a pleasant surprise to me. Like many pundits, I predicted that the Court would issue a divided opinion on DOMA – or alternatively, a 5-4 decision striking down the law as a violation of states’ rights, rather than as a violation of due process or equal protection principles. Like others, I based my predictions on Justice Kennedy’s remarks during oral argument.
During oral argument, Justice Kennedy had argued forcefully that DOMA improperly “intertwined” the federal government “with the citizens’ day to day life,” because it applied to “over 1,100 laws.” As a result, he reasoned, the law was “at real risk of running into conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”
When the Solicitor General claimed that DOMA violated equal protection principles, Justice Kennedy seemed to rebuff him, by suggesting that the issue of states’ rights took precedence over the issue of equal protection: “But you’re – you are insisting that we get to a very fundamental question about equal protection, but we don’t do that unless we assume the law is valid otherwise to begin with. And we are asking is it valid otherwise. What is the Federal interest in enacting this statute and is it a valid Federal interest assuming, before we get to the equal protection analysis?”
In today’s ruling, however, this framework was flipped: The Court struck down DOMA as a violation of equal protection, without resolving whether it was a violation of states’ rights. Although Justice Kennedy spent several pages suggesting that marriage was traditionally regulated by states, he explicitly refused to invalidate DOMA on this ground: “Despite these considerations,” he explained, “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.”
Of course, it’s impossible to know exactly what happened behind the scenes in these cases – whether Justice Kennedy was only playing devil’s advocate at oral argument, or whether he changed his view later, in response to a give-and-take with one or more of his colleagues. Playing Sherlock, it’s tempting to guess that he started out by writing an opinion striking down DOMA as a violation of states’ rights, but found himself alone on the Court in this view. During oral argument, Justice Kagan suggested that DOMA’s unprecedented intrusion into the domain of marriage may be “relevant to the equal protection inquiry,” which is precisely what Justice Kennedy ended up saying in today’s ruling. To garner a majority of the Court, Justice Kennedy may have been compelled to switch horses, and reach the question about equal protection that he would have preferred to avoid.
In any event, whatever happened during the Court’s deliberations, this subtle shift from states’ rights to equal protection represents a major turning point in the struggle for LGBT rights. After Windsor, marriage equality is closer than ever, and full equality under the law cannot be far behind.
Clifford J. Rosky is an Associate Professor of Law at the University of Utah’s S.J. Quinney College of Law. Read Prof. Rosky’s previous post on the marriage equality cases.