Gay Marriage: A Careful Step Forward

Anthony Kennedy
Anthony Kennedy; drawing by David Levine

In a historic, eloquent, and at times cryptic opinion, the Supreme Court has taken 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 the 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 declined to decide the issue of state authority to restrict marriage. Chief Justice John Roberts, in an unlikely lineup joined 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 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 in a case properly presented.

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 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.

What will the Court do when the issue of whether states can limit marriage to opposite-sex couples is put before it again? It is difficult to read Justice Kennedy’s opinion in Windsor without sensing, as Justice Scalia warned in his angry dissenting opinion, that the “other shoe” will drop eventually, and the Court will ultimately recognize that denying same-sex couples the right to marry violates the Constitution in the same way that denying mixed-race couples the right to marry does. (Significantly, in his opinion for the Court, Justice Kennedy cited Loving v. Virginia, the Court’s 1967 decision on interracial marriage, for the proposition that the state’s otherwise broad authority to define marriage is subject to constitutional limits.) But Kennedy’s opinion was nonetheless written in such a way to leave the question open while political thinking about gay marriage continues to evolve.

The case against Congress’s attempt to define marriage through the Defense of Marriage Act was always easier 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 what marriage benefits are conferred by federal law. DOMA, signed into law by President Bill Clinton after a Hawaii court decision threatened to recognize same-sex marriage, broke from that tradition and displaced all state definitions in favor of a federal law that restricted marriage to 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 disapproving of that class.” 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 that have no purpose other than to demean or stigmatize a group have long been treated, for that reason, as a violation of equal protection, and Kennedy appeared to conclude that DOMA was of the same ilk.

I say “appeared,” however, because Justice Kennedy seemed to rely on two constitutional safeguards, and was not always clear about which one he was relying on. He suggested that the Defense of Marriage Act denied equal protection because it created a double standard, treating marriages recognized by states differently depending on whether they were between opposite-sex or same-sex couples. But he also said that DOMA was a violation of due process itself, 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. 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 right all the more specific and all the better understood and preserved.” And Justice Kennedy said nothing about one of the most hotly debated questions in the case—namely, what standard of scrutiny should be applied 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 Kennedy’s reasoning. He was evidently frustrated by 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 asserted government justifications 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 rationales 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). And the desire to avoid a difficult “choice of law” question 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. The argument for “heightened scrutiny” of such laws is very strong, in view of the long history of discrimination against gays and lesbians, and indeed the Obama administration, which declined to defend DOMA, argued forcefully in its brief that such scrutiny was appropriate.

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 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 avoided 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 Perry, the California case, which sent the issue back to district court. He dissented, joined by three other justices, and would have decided that case on the merits. Had he attracted a fifth vote for that view, it would have rendered all the care he took in the Windsor decision moot, because the Court would have had to address the question of state authority directly. The statesmanship of the two decisions, then, comes not from any one justice, but from the collective action of the court as a whole. There’s a reason we have nine justices.

As for the future, Chief Justice Roberts wrote a separate dissent in Windsor for the sole purpose of underscoring that Kennedy’s majority opinion did not resolve the issue of state authority to restrict marriage. But notwithstanding its carefully limited reasoning, the tenor of Justice Kennedy’s opinion, and in particular his repeated reference to the fundamental interests in personhood, pride, and dignity that same-sex married couples have, suggest, as Justice Scalia gloomily predicted, that the Court will eventually require the states as well to recognize same-sex and opposite-sex marriage on equal footing.

That would certainly be the right outcome, both morally and constitutionally. The justifications for denying a “dignity and status of immense import” to gay and lesbian couples are unpersuasive, whether at the federal or the state level. Same-sex couples, like opposite-sex couples, can and do make long-term commitments to live together as a family unit. They can and do raise children, pay taxes, care for dependent family members, and the like. The real reason so many states have denied marital status to same-sex couples is a sense, founded on tradition and moral disapproval, that these couples do not deserve it, simply because they are of the same sex. But the Court has already held, in Lawrence v. Texas, its 2003 decision invalidating state sodomy laws, that tradition and mere moral disapproval are insufficient grounds for differential treatment of gay and straight couples.


We will have to wait for the other shoe to drop, but drop it will.

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