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Justice Anthony M. Kennedy surely secured a place in history as a leading protector of gay and lesbian civil rights when he authored the majority opinion Wednesday in United States v. Windsor, striking down Section 3 of the so-called Defense of Marriage Act.
Windsor was his third major gay rights decision since 1996. In Romer v. Evans, Kennedy wrote the opinion for the court in 1996 invalidating a voter-passed Colorado initiative that had barred governmental entities from enacting laws protecting gays and lesbians from discrimination. And a decade ago in Lawrence v. Texas, Kennedy determined that laws prohibiting private consensual "sodomy" violated the due process clause's "liberty" guarantee. Both of Kennedy's earlier decisions were important building blocks to last week's Windsor decision.
Using powerful language, Kennedy struck down Section 3 of the Defense of Marriage Act for violating the Fifth Amendment due process and equal protection principles. His opinion acknowledged the harms both tangible and intangible that DOMA inflicted on lesbian and gay couples and their families by depriving them of the more than 1,000 federal benefits available to different-sex married couples.
For example, he noted that under DOMA, heterosexual spouses of federal employees were entitled to health care benefits while same-sex spouses of federal employees were not. Kennedy was surely aware too that under DOMA, a heterosexual spouse of a veteran killed in service to the country would be entitled to benefits while a same-sex spouse would not.
In addition to these tangible injuries, Kennedy also made clear that DOMA caused real and constitutionally cognizable dignitary harms. DOMA, Kennedy explained, was an official government mark that the marriages of same-sex couples were "second-class marriages," unworthy of federal recognition. Or, to use the words of Justice Ruth Bader Ginsburg at oral argument, under DOMA, same-sex couples were only entitled to a "skim milk" version of marriage.
Ultimately, Kennedy concluded that Congress lacked a sufficient justification for the imposition of these harms on this single class of people. The legislative history, Kennedy explained, made clear that "interference with the equal dignity of same-sex marriages was more than an incidental effect of (DOMA). It was its essence." This conclusion, he said, was confirmed by the very title of the act: "The Defense of Marriage."
Kennedy reaffirmed the principle that seeking "to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity" is a constitutionally inadequate rationale for a law.
How far-reaching is the Windsor opinion on DOMA? The opinion ends with a sentence that reads like a last-minute add-on: "The opinion and its holding are confined to those lawful marriages." By this Kennedy seemed to be saying that the decision did not address the broader question of whether the Constitution bars states from limiting marriage to heterosexual couples. Of course, this is hardly surprising, as that issue was not before the court in the Windsor case.
Yet in the companion case of Hollingsworth v. Perry, the court also declined to answer that question. Although involving a challenge to Proposition 8, California's ban on same-sex marriage, the Hollingsworth case invited the court to decide whether all state laws that exclude gays and lesbians from the right to marry violate the U.S. Constitution. For those who watched the oral argument, it came as no surprise that none of the justices advocated this far-reaching result. But what was rather surprising was that none of the justices elected to discuss that underlying constitutional question.
Instead, all nine justices the five in the majority and the four in dissent limited their discussion to the procedural issue of "standing" that is, whether the Proposition 8 proponents were entitled to appeal the trial court decision which invalidated the ban on same-sex marriage. The majority concluded they did not, stating: "We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here."
Kennedy, writing for the dissent, argued to the contrary. He argued that California's particular initiative process combined with the California Supreme Court's determination that the Proposition 8 proponents had standing were enough to allow them to bring an appeal.
Because no justice considered the merits of the case, how they would have voted on the underlying marriage equality question is a matter of conjecture.
But, despite Kennedy's statement to the contrary, his opinion in the Windsor case offered some insights into that question. In his dissent, Chief Justice John Roberts went to great lengths to underscore the point that Kennedy's opinion was limited in scope, in no way affecting a determination about marriage equality nationwide. Yet, Justice Antonin Scalia, in his separate dissent, drew exactly the opposite conclusion. As he did in his dissent in the Lawrence case, Scalia proclaimed that the majority opinion was basically a blueprint for marriage equality being a constitutional mandate in every state.
"How easy it is, indeed how inevitable," Scalia wrote, "to reach the same conclusion with regard to state laws denying same-sex couples marital status."
Scalia may indeed be right. Although there are grounds to distinguish the Windsor case in challenges to state bans, it surely advances the argument for marriage equality across the country. Bans on same-sex marriage are similar to DOMA in critical respects. Both seek to impose a disadvantage and a stigma on those in same-sex relationships.
Moreover, the powerful language Kennedy uses in the Windsor case about the right of lesbian and gay people to equal dignity and respect for their lives and their relationships likewise suggests that bans on same-sex marriage in other states are significantly more vulnerable now than they were a week ago.
Why five justices were not ready to make that declaration is anybody's guess. But at the end of the day, the Defense of Marriage Act and Proposition 8 are dead. With California once again permitting lesbian and gay couples to marry, almost one-third of the United States population will live in states with marriage equality.
The fight now turns to challenges to the bans on same-sex marriage in other states. But last week's decision is yet another indication that the tide has turned, and that fairness and equality for lesbian and gay people are only a matter of time.
Courtney G. Joslin is a law professor at the University of California, Davis, School of Law. Lawrence C. Levine is a law professor at University of the Pacific McGeorge School of Law.