DOMA Bites The Dust
The New Civil Rights Movement
By Nan Hunter
June 26, 2013
In a decision by Justice Kennedy, the Supreme Court ruled this morning 5 to 4 that the federal government must recognize the validity of same-sex marriages recognized under state law. Widely anticipated yet still wildly celebrated, the opinion was the first to invalidate a federal statute on the ground that it discriminates based on sexual orientation. For that reason alone, it sets a new high water mark for lgbt rights advocates.
As in prior gay rights decisions by Justice Kennedy, who obviously has adopted this field as one of his primary legacies, the opinion in United States v. Windsor soars with aspirational rhetoric:
DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage re-gimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and pro-tect. By this dynamic 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 unsta-ble position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, and whose re-lationship 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 chil-dren to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
Despite the power of the language, Justice Kennedy again seems to duck the kinds of doctrinal details that lawyers and lower courts look for, such as an explicit statement of the standard of review to which other classifications based on sexual orientation must be subjected. My hunch is that the wording of this opinion was negotiated among the Justices with even more care than is normal. Beneath its shimmering surface, Windsor is a fairly complex decision: it weaves a federalism strain into an equality analysis, which itself seems a bit wobbly about the precise constitutional placement of its analysis:
…DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.
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. See Bolling, 347 U. S., at 499–500; Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 217–218 (1995). 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.
Justice Scalia’s dissent, almost embarrassingly bitter, makes hay of these and other gaps in the decision, flailing against the tide. [A separate post on the dissent to come.] Meanwhile, the White House issued a celebratory statement promising that the decision will be “implemented swiftly and smoothly.”