The Questions Raised by Striking Down DOMA
In light of the release of Windsor v the United States, Karl Laird analyzes the US Supreme Court’s reasoning, noting the Court still avoids the hard questions.
It took Justice Anthony Kennedy just 26 pages to give Edie Windsor what she had fought for since the death of her beloved wife Thea; the federal recognition of their marriage that s 3 of DOMA forbade. In an opinion the importance of which is hard to overstate, a majority of the Supreme Court yesterday struck down s 3 of DOMA as being contrary to the equal protection clause of the Fifth Amendment. Section 3 is the section that defines marriage as a ‘legal union between one man and one woman’ and states that ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.
In striking down s 3, Justice Kennedy states that DOMA ‘writes inequality into the entire US Code’ by denying lawfully married couples a panoply of federal benefits available to opposite-sex couples. Justice Kennedy explains how the States have long had the responsibility of regulating and defining marriage and how some States have opted to allow same-sex couples to marry in order to give them the protection and dignity associated with marriage. Section 3 of DOMA, by denying recognition at the federal level, discriminates against same-sex couples who are legally married at the State level. The Court recognizes that DOMA was enacted with the purpose of ensuring that if a State decides to permit same-sex marriages, then those marriages will be treated as second-class for the purposes of federal law. Such marriages are what Justice Ginsburg memorably referred to in oral argument as ‘skim milk marriages’. Building upon his earlier decision in Lawrence v Texas (incidentally, the 10 year anniversary of which was yesterday) Justice Kennedy states that the differentiation that DOMA creates demeans same-sex couples, whose moral and sexual choices the Constitution protects and whose relationship the State has sought to dignify. The decision goes on to outline how DOMA ‘divests married same-sex couples of the duties and responsibilities that are an essential part of married life and that they in most cases would be honored to accept were DOMA not in force.’ Given that no sufficient justification could be adduced to sustain this deprivation of equal liberty and basic dignity, the Court holds that it has no choice but to invalidate DOMA. The majority makes pains to point out that the issue of whether it is unconstitutional for States to deny same-sex marriage is not before the Court and that Windsor has no bearing upon this particular issue.
In a dissent vitriolic even by his standards, Justice Scalia derides the majority as having ‘real cheek’ in assuring the nation that the constitutionality of State laws banning same-sex marriage is not before the Court when, in his view, those State laws could not be upheld as being consistent with the premises of Windsor. This passage is reminiscent of what Justice Scalia argued ten years ago in Lawrence, namely that that decision would inexorably lead the Court to invalidating any State law limiting marriage to opposite-sex couples on the basis that such laws are an insult to equal dignity and liberty. Whether Justice Scalia’s prediction is correct remains to be seen, however one aspect of his dissent does deserve particular attention. Justice Scalia states that if the majority decision is meant to be one based upon equal protection then it is a ‘confusing’ one because no mention is made of what standard of scrutiny DOMA was subjected to (for more on this see a previous post). Did DOMA fail some higher standard of scrutiny or did the majority subject it to mere rational basis review? Justice Scalia may be onto something here. The Supreme Court has consistently avoided articulating what standard of scrutiny ought to be applied to measures that discriminate against gays and lesbians. Windsor is no different. Do gays and lesbians constitute a suspect class? Windsor does not answer this question. The closest the majority gets is to say that DOMA must be subject to ‘careful consideration’, the meaning of which remains unclear. This is important. The next front in the battle for LGBT equality will be those 32 States that have amended their constitutions to prohibit same-sex marriage. If these bans are to be challenged on equal protection grounds, and Windsor indicates they ought to be, State courts and lower federal courts still have no guidance as to what standard of scrutiny such bans ought to be subject to. Such uncertainty will entail further complex litigation.
The Court has one sitting day left of this term and later today announces a further tranche of cases it has decided to hear next year. One of the potential cases, Brewer v Diaz, (indirectly) raises the issue of whether the Constitution forbids prohibitions on same-sex marriage. Given the controversy that has surrounded the Court’s current term, the Justices may prefer next year to be a quieter one and so leave the issue for another time.
While the decision in Windsor is an historic one for LBGT equality, it is not the end of the struggle. Indeed, it may only be the beginning.
Karl Laird is a Lecturer at Pembroke College, Oxford and a regular contributor to the OxHRH Blog.