Could the outcome in Windsor v US be a hollow victory?

by | Mar 28, 2013

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About Karl Laird

Karl Laird is a Lecturer in Law, St Edmund Hall, Oxford.|Karl Laird is a Lecturer in Law, St Edmund Hall, Oxford.|Karl Laird is a Lecturer in Law, St Edmund Hall, Oxford.

Yesterday, the United States Supreme Court heard argument in Windsor v United States.  We have been closely following this case on the OxHRH Blog.  Today’s post will analyze the transcript of the hearing in order to see if we can get any hint of the direction in which this case might go.  

The first half of the argument on the merits of the case was devoted to the issue of federalism.  Specifically, whether the Defence of Marriage Act’s (DOMA) prohibition on the federal government recognising same-sex marriages that are valid at the state level violates states’ rights.  Counsel for Bipartisan Legal Action Group (BLAG) sought to argue that s.3 of DOMA in fact upholds this principle, as it ensures that the federal government treats marriages uniformly in all states.

Justice Ginsburg disputed the validity of this line of reasoning.  In one of the more memorable moments of the hearing, she referred to a same sex marriage recognised by the state but not the federal government as a ‘skim milk marriage’, given that DOMA denies to a married same sex couple some 1,100 benefits conveyed by the federal government.  Importantly, given that he will most likely cast the deciding vote, Justice Kennedy also expressed concern that DOMA violates states’ rights.  He put to counsel for BLAG that DOMA is at ‘real risk’ of running into conflict with the states’ prerogative to define marriage.  This risk is heightened given that the federal government is so intertwined with citizens’ day-to-day lives.  This point was also made by the Court’s liberal members.

Counsel for Edith Windsor, Roberta Kaplan, focused on the equal protection point (see previous posts), arguing that DOMA fails even under rationality review, which merely requires legislation to be rationally related to (any) legitimate governmental interest.  The conservative members of the Court focused on the federalism issue, perhaps hoping to avoid the issue of what standard of scrutiny ought to be applied to legislation that impacts upon the interests of gays and lesbians.  Chief Justice Roberts asked Kaplan whether the senators who voted for DOMA were motivated by their moral disapproval of gays and lesbians.  Kaplan denied this and sought to argue that there had been a ‘sea change’ in society’s attitude towards gays and lesbians in that people now understand they gays and lesbians are no different from anyone else, a point that was perhaps lost on senators in 1996.  While Justice Ginsburg attempted to assist Kaplan on this point, by asking how many states had now adopted civil unions and same sex marriage, the Chief Justice put a question to Kaplan, the answer to which has the potential to undermine a key tenet of the lower courts’ decisions that found in favour of Ms Windsor.  The Chief Justice asked whether this ‘sea change’ was brought about by the political force and effectiveness of gay and lesbian advocates, as demonstrated by the fact that politicians are now ‘falling over themselves’ to endorse the cause.  The reason this is such an issue is that one of the characteristics that a group must embody in order to benefit from heightened scrutiny review, which is what the claimant really wants as it will make it easier to challenge the constitutionality of provisions that target gays and lesbians, is that they are ‘discrete and insular’, i.e. politically ineffective.  The issues inherent in such reasoning have been examined in a previous blog post.   

Justice Kennedy’s questioning of Paul Clement on the federalism issue suggests that he may side with the Court’s liberal members on this issue.  Although this would be a victory for same-sex marriage advocates, it would be something of a hollow one.  The Court would not then need to decide upon the standard of scrutiny that is to be applied when reviewing legislation that discriminates against gays and lesbians.  Such a test, if developed, could then be used to challenge the constitutionality of state laws that prohibit same – sex marriage.  It has been said that Windsor is the Brown v Board of Education moment for gay and lesbian rights.  Given the decades that it took to achieve the promise of Brown and the fact that it might even have mobilized white southern opposition to civil rights, this is not necessarily as positive an association that might at first be thought.

Karl Laird is a Lecturer at Pembroke College, Oxford and a regular contributor to the OxHRH Blog.

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