United States v. Windsor
Hollingsworth v. Perry
Shelby County v. Holder
Fisher v. University of Texas
The Equal Protection Clause of the Constitution, adopted three years after the Civil War as part of the Fourteenth Amendment, was designed principally to protect emancipated slaves from states that would deny their newly gained status as free and equal citizens. Yet in the Supreme Court this term, African-Americans were the big losers, while the winners were groups that the clause’s authors would not have imagined they were protecting at all: (1) southern states with a documented history of race discrimination; (2) whites challenging state efforts to help blacks by means of affirmative action; and (3) same-sex married couples.
This paradoxical departure from the Equal Protection Clause’s “original” purpose is not in itself a ground for criticism. Like much else in the Constitution, it was written in broad, general terms for the ages. It was not narrowly limited to the specific problem to which it was addressed at the time. It guarantees “equal protection of the laws” to all, not just to blacks. Through extended political struggle and evolving judicial interpretation, the scope of its protection has grown, embracing, among others, women and foreign nationals. So the fact that the Court, on the last day of its term, recognized the equal dignity of same-sex married couples should be seen as simply another important step in the inexorable development of our nation’s constitutional commitment to equality.
The Court’s concurrent denial of important protections to African-Americans, however, is of grave concern—not simply because it parts company with the Fourteenth Amendment’s original intent, but more fundamentally because it underscores that a majority of the Court believes that the time for legal measures designed to redress the nation’s long history of subordinating black citizens is past, and that the way forward is through mandated color-blindness. As Chief Justice John Roberts put it in 2007, invalidating a program designed to integrate public schools, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” For five of the Court’s justices, it’s as simple as that.
Only such a worldview could impose on states the same burden of justification when they seek to help African-Americans as when they seek to oppress them, as the Court has done in its decisions on affirmative action. And only such a worldview could lead the Court to elevate the “equal sovereignty” of states, a principle not even mentioned in the Constitution, over the voting rights of minority citizens—as the Court did this term in striking down the heart of the 1965 Voting Rights Act.* By imposing this view on the nation, the Court has not only refused to interpret the Equal Protection Clause as mandating measures to ameliorate racial inequality, but has used the clause to obstruct the states and Congress from doing so.
First, the good news. In a historic, eloquent, if at times cryptic opinion, the Supreme Court took its first important step toward recognizing the constitutional right to same-sex marriage. On the last day of its 2012–2013 term, in United States v. Windsor, the Court ruled unconstitutional a provision of Congress’s 1996 Defense of Marriage Act (DOMA) that selectively denied many federal benefits to same-sex couples whose marriages were recognized by state law. Justice Anthony Kennedy, joined by the Court’s four liberal justices, said that when the states chose to extend marriage to same-sex couples, they “conferred upon them a dignity and status of immense import.” When Congress, by contrast, denied those same couples a raft of federal benefits, Kennedy wrote, it “impose[d] a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.”
Kennedy’s decision was carefully limited to the question of Congress’s authority to restrict marriage to opposite-sex couples; he insisted that he was not deciding the much larger question of whether states can restrict marriage along those lines. And by a different five-justice majority, the Court in Hollingsworth v. Perry the same day declined to decide the issue of state authority to restrict marriage. Chief Justice John Roberts, joined in an unlikely majority by Justices Antonin Scalia, Stephen Breyer, Ruth Bader Ginsburg, and Elena Kagan, concluded that the citizens who sought to appeal a district court ruling invalidating California’s anti–gay marriage Proposition 8 lacked standing to bring the appeal. By dismissing the appeal and leaving the district court decision intact, the Court effectively legalized same-sex marriage in California, but without making any pronouncements about how it would decide the matter on its own merits.
Together, these decisions are a consummate act of judicial statesmanship. They extend federal benefits to all same-sex married couples in states that recognize gay marriage, expand the number of states recognizing gay marriage to thirteen, yet leave open for the time being the ultimate issue of state power to limit marriage to the union of a man and woman. The Court took a significant step toward recognition of the equality rights of gays and lesbians. But by not imposing same-sex marriage on the three quarters of the states whose laws still forbid it, the Court has allowed the issue to develop further through the political process—where its trajectory is all but inevitable.
The case against Congress’s attempt to define marriage through DOMA was always easier to argue than the case against a state marriage restriction, because marriage is largely the province of the states. The federal government has historically deferred to state definitions of marriage to determine who should receive marriage benefits. Congress broke from that tradition when it enacted DOMA, after a Hawaii court decision threatened to recognize same-sex marriage for the first time. DOMA displaced all state definitions in favor of a federal law that restricted marriage to unions between a man and a woman.
The fact that DOMA was an “unusual deviation from the usual tradition” of respecting state law, Kennedy reasoned, was “strong evidence of a law having the purpose and effect of disapproval of that class,” i.e., the class of same-sex married couples. Looking further into the law’s legislative history, as well as the arguments advanced in its defense in Windsor itself, Kennedy found that “interference with the equal dignity of same-sex marriages” was not just the law’s effect, but its very “essence.” Laws designed to demean or stigmatize a group have long been treated, for that reason, as a violation of equal protection of the law, and Kennedy appeared to conclude that DOMA was of the same sort.
I say “appeared,” however, because Justice Kennedy was not always clear about which of two constitutional principles he was relying on. He suggested that DOMA denied equal protection because it created a double standard, treating marriages recognized by states differently depending on whether they were unions of opposite-sex or same-sex couples. But he also said that DOMA was a violation of due process, suggesting that the right of same-sex couples to marry, at least when recognized by the states, is a fundamental “liberty” that cannot be infringed without a substantial justification. Thus, he wrote, “while the Fifth Amendment [due process clause] itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee…makes that Fifth Amendment right all the more specific and all the better understood and preserved.”
Justice Kennedy said nothing, however, about one of the most hotly debated questions in the case—namely, what standard of scrutiny should apply to laws that discriminate on the basis of sexual orientation? Much as the Court did when it first invalidated laws discriminating on the basis of sex, the Court in Windsor avoided specifying a standard of review, but seemed silently to apply a healthy measure of skepticism to the distinction.
In his dissent, Justice Scalia vehemently objected to the majority’s lack of clarity about whether it was relying on equal protection or due process, and what standard of review it was employing. And he criticized Kennedy for failing to address more forthrightly the justifications the government asserted for DOMA. The law’s defenders said it served a desire to have a uniform standard of marriage for purposes of federal law, and to avoid difficult questions that might arise when different state marriage laws conflict.
Kennedy’s decision would have been stronger had he addressed these arguments head-on, and it should not have been difficult to do so. The federal government has long tolerated differences in the way states define marriage (such as varying age limits for when one can marry, and different limits on marriage between cousins), so why demand uniformity only with respect to the gender identity of the married couples? And the desire to avoid difficult “choice of law” questions between conflicting state laws, the kinds of questions courts routinely confront and decide, can hardly merit relegating an entire group of people to second-class status, as Scalia seemed to suggest it should.
Moreover, a clear discussion of the appropriate standard of review for laws that treat people differently on the basis of sexual orientation would have offered useful guidance to lower courts. Equal protection doctrine has long identified certain types of distinctions as inherently more “suspect” than others. Thus, laws that classify people on the basis of race or gender call for stringent scrutiny, while laws that classify on many other bases, such as age, merit only deferential review. The levels of scrutiny guide the courts in how suspicious they should be of particular types of laws. The argument for “heightened scrutiny” of laws discriminating on the basis of sexual orientation is very strong, in view of the long history of discrimination against gays and lesbians, and the irrelevance of sexual orientation to most official decisions. Indeed, the Obama administration, which declined to defend DOMA, argued forcefully in its brief that heightened scrutiny was appropriate for these reasons.
So as a matter of pure judicial craft, Justice Kennedy could have been more clear and definite. But judging is not only a matter of craft. Justice Kennedy sought to walk a fine line—invalidating a federal law limiting marriage to opposite-sex couples without simultaneously resolving the question of whether similar state laws are constitutional. Had he pronounced that all classifications based on sexual orientation are suspect and subject to heightened scrutiny, or had he held that the due process clause affirmatively protects the right of two committed adults to marry, regardless of sex, he would have, in effect, decided the broader issue. By focusing instead on the federal government’s unusual intrusion into a prerogative of state law, and its dramatic imposition of a double standard in states that recognize same-sex marriage, he wisely limited his decision to the federal law at issue. By allowing the transition to full recognition of same-sex marriage to take place gradually, Kennedy’s opinion avoids the backlash that a federal mandate to recognize same-sex marriage in every state might have triggered.
Ironically, Justice Kennedy did not join the majority opinion in Hollingsworth v. Perry, the California case challenging Proposition 8—the ban on gay marriage in California that was adopted in 2008 and found unconstitutional both by a district court and by the US Court of Appeals for the Ninth Circuit. That case squarely presented the broader question of state authority to restrict marriage to unions between a man and a woman. While the majority dismissed the appeal by Proposition 8 proponents on the narrow ground that they lacked “standing” to appeal the district court’s decision, Justice Kennedy dissented, joined by three other justices, and would have decided that case on the merits.