Kennedy's Marriage Ruling Is About Gay Rights, Not States' Rights

By Garrett Epps

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Justice Kennedy, not in the courtroom but rather presiding over a representation of "The Trial of Hamlet" at the Shakespeare Center of Los Angeles in January, 2011. (Damian Dovarganes/AP)

Read enough opinions by Justice Anthony M. Kennedy, and you will realize that he has three jurisprudential loves: the sovereignty of American states; the "dignity and worth" of gay men and lesbians; and the majesty of the Supreme Court of the United States.

Wednesday, Kennedy made history by affirming the importance of all three. In United States v. Windsor, Kennedy wrote for a five-justice majority (including Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan). His opinion struck down the federal Defense of Marriage Act (DOMA). As evidenced by language in the opinion about the "sovereign authority within our federal system," DOMA fell in part because it discriminated against states that allow same-sex marriage. But more important was the majority's view of its mean-spiritedness toward same-sex couples.

So to be clear, this decision was not about "states' rights." It was about gay rights.

The Windsor opinion caps a trilogy of historic Kennedy opinions affirming gay equality. It sounds the same theme with which he began the process in the 1996 case of Romer v. Evans: no government has the authority under the Constitution to single gay people out as less worthy than others. As refined in Lawrence v. Texas, that principle means that, when a law makes gays unequal, the Court need not consider whether sexual orientation is like race or gender, a trait requiring special solicitude from courts. All that it need do is establish the illegitimate purpose -- creating inequality in a way that demeans gays -- and the state or federal law will fall.

The issues in Windsor reduce to three: (1) since the Administration had refused to defend the law before the Court of Appeals, did the parties belong before the Supreme Court at all?; (2) because DOMA used federal law to reject some marriages legal under state law, did the statute violate a state's presumed power over marriage and family?; and (3) by rejecting federal recognition of marriages recognized by states, did it violate the rights of the couples themselves?

Kennedy's answers were:

(1) Yes, the Court could hear the case: "[I]f the Executive's agreement with the plaintiff that a law is unconstitutional is enough to preclude judicial review, then the Supreme Court's primary role in determining the constitutionality of a law ... would become only secondary to the President's."

(2) A state's power over marriage, while important, is not walled off against "limited federal laws that regulate the meaning of marriage in order to further federal policy." DOMA was not automatically invalid, but its breadth raised suspicions about Congress's motive.

(3) A same-sex couple, once recognized as such by state law, may not face federal discrimination solely because Congress prefers opposite-sex marriage.

Denial of federal recognition, Kennedy writes, is a federal mark of shame against same-sex couples and their children:

DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

Because DOMA is a federal law, Kennedy's opinion rests on the Fifth Amendment, not the Fourteenth (which applies only to states). But it is the Fourteenth Amendment concept of "equal protection" (now embodied in the Fifth) that Kennedy invokes:

The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.

Equal protection in this case protects "persons who are joined in same-sex marriages made lawful by the State." In other words, the right, and the language above, refer to persons and not purely to couples. And it is not a limit on federal power, but a protection against both federal and state governments.

By its terms, the opinion does not require any state to allow same-sex marriage. But Kennedy's language lends itself easily to a challenge, for example, to a law allowing "civil unions" but not marriages; or to a law allowing same-sex couples to adopt but not to form unions or marry; or to a law denying recognition to same-sex couples married in another state. Each differentiation between gays and straights must now be tested to see whether its purpose is to "degrade or demean" those it excludes.

Certainly the four dissenters (Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito) have that possibility very much in mind. Roberts's separate opinion is a guide for federal and state judges who wish to confine Windsor only to the rights of couples against the federal government. Alito, partially joined by Thomas, echoes Roberts: "To the extent that the Court takes the position that the question of same-sex marriage should be resolved primarily at the state level, I wholeheartedly agree. I hope that the Court will ultimately permit the people of each State to decide this question for themselves."

Scalia takes the reverse tack, using the strikethrough and insert functions to make Kennedy's expansive language apply to all state marriage laws. "As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe."

Scalia's dissent displays him at his best. Gone is the crude homophobia of his dissents in Romer and Lawrence. He argues more in sorrow than anger that the issue should have been left to the political process:

We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. ... Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.

It is powerfully said; but many will not feel cheated. Court decisions influence politics, and no decision in Windsor would have been "neutral."

In a close question, on this day in the year 2013, human equality won.

This article available online at:

http://www.theatlantic.com/national/archive/2013/06/kennedys-marriage-ruling-is-about-gay-rights-not-states-rights/277251/