The Supreme Court’s same-sex marriage opinions are not an easy “read,” and there is lingering confusion about their implications. Here are some of the highlights and some remaining questions.
First, the court’s holding in Hollingsworth v. Perry, the Proposition 8 case, was in some respects quite technical. At the same time, however, its implications for citizen-led ballot initiatives are stunning.
In Hollingsworth, the court held by a 5-4 decision that the official proponents of Proposition 8 (the initiative amending the California constitution to define marriage as an opposite-sex institution) did not have “standing” to appeal the federal district court’s decision, striking it down. This was so even though the state of California refused to defend Proposition 8 and explicitly permitted its proponents to defend it. After losing at the district court, these proponents appealed to the Ninth Circuit, losing there as well.
The Supreme Court, in its opinion written by Chief Justice John Roberts, held that because the Proposition 8 proponents had nothing more than a “generalized grievance” — because they simply wished to “vindicate the constitutional validity of a generally applicable California law” — they could not appeal the case. The Ninth Circuit’s opinion had to be vacated. The Supreme Court did not apply this rationale to the district court case. Consequently, there is legal confusion about the effects of the district court’s opinion.
Technical doctrinal points aside, the court’s opinion has ominous implications for citizen-led ballot initiatives. To wit, if a state’s executive powers refuse to defend a popularly passed law or constitutional amendment, it is not clear who can. The law will fall upon challenge, no matter how many millions of citizens supported it and no matter the percentage by which they won. It is unclear, after Hollingsworth, who could defend Proposition 8, and that is a disturbing result.
The second case, U.S. v. Windsor, likely has more implications for the future of same-sex marriage under the Constitution. Windsor involved two women, Edith Windsor and Thea Spyer, deemed married by the state of New York. On the death of Spyer, Windsor was required to pay federal estate taxes under Section 3 of the Defense of Marriage Act (DOMA), which held that, for purposes of all federal laws, “marriage” is the union of one man and one woman. Consequently, the spousal exemption from estate taxes did not apply to Windsor.
The court spent the vast majority of its opinion, written by Associate Justice Anthony Kennedy, upon the substantive question: Is Section 3 of DOMA constitutional? The court answered “no,” and Section 3 was struck down, but for what precise reason it is hard to say.
It first appeared as if the court might strike down Section 3 on “federalism” grounds — i.e., the notion that Congress had legislated in an arena reserved to the states: defining marriage. Certainly, the court spoke emphatically about the state’s leading role in the family law arena. But after this discussion, the majority stated that it was “unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.” Rather, Section 3 was unconstitutional because it was enacted for the “purpose” of “impos[ing] a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”
Congress and President Clinton, who was president when the 1996 act became law, intended to “demean” and to “injure” the couple, and to “humiliate” any children they were raising. How did the Court discern these subjective intentions? From the very title of the law, and from a few selected passages of the legislative history wherein some members of Congress spoke of defending long-standing and morally respected understandings of marriage.
The court’s “reasoning” here is virtually impenetrable. The majority appear to hold that Section 3 violates the Fifth Amendment’s due process clause. But they never pursue the usual due process inquiries (Is same-sex marriage necessary to achieve “ordered liberty” in the United States? Is it an inescapable part of our “history and tradition”?) that would in any case yield the opposite result.
The majority also appear to find a violation of the Constitution’s equal protection guarantee. But they likewise fail to pursue the usual accompanying questions: What kind and level of “right” is at stake? And do people wishing to marry a partner of the same sex merit treatment as a “suspect class,” in which case it should be harder for the government to justify treating them differently?
In the end, as University of Notre Dame law professor Gerard Bradley articulated, only one thing appears to be surely linked to the holding: Kennedy “believes, fervently, that any singling out of homosexuals and lesbians from a class of persons to which they otherwise properly belong is to demean and to stigmatize them — and doing that violates the Constitution.” Linked to this, Kennedy and the majority are wedded to the notion that sexual expression is a crucial part of identity formation and self-esteem.
Called to witness
Following these cases, the most significant question about the future of marriage is surely whether Windsor “set the table” for coast-to-coast same-sex marriage. The answer, without any attempt to be cheeky, is probably this: It depends on what Kennedy wants to do going forward. His opinion for the majority could easily be applied to any state law refusing to recognize same-sex marriage. As Justice Antonin Scalia writes in his dissent: “In sum, that court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the ‘personhood and dignity’ which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that ‘personhood and dignity’ in the first place.” (I would add that this feature of the majority opinion bodes ill for religious exemptions to same-sex marriage laws as well.)
But Chief Justice Roberts reminds us that the majority acknowledges that “‘[t]his opinion and its holding are confined to those lawful marriages,’ — referring to same-sex marriages that a state has already recognized.” Further, the majority’s insistence upon state sovereignty over family law should confirm states’ freedom to preserve opposite-sex marriage.
The future is unknown. At the very least, Hollingsworth and Windsor call on us — lawyers, pastors, citizens and relevant experts of all kinds — to better crystallize our arguments on behalf of marriage, to display the human face of our claims, and robustly to give witness to what marriage is and is meant to be. In light of the Supreme Court’s willingness to defy logic, common sense and even the norms of constitutional law, even excellent legal arguments by themselves cannot save us.
Helen Alvaré is a law professor at George Mason University.