The fruits of Windsor

The case of United States v. Windsor that the US Supreme Court ruled on last summer in which the Defense of Marriage Act DOMA was held to be unconstitutional has had a domino effect, with lower courts in state after state ruling that bans of same-sex marriage are unconstitutional.

David S. Cohen and Dahlia Lithwick have written an analysis of the Windsor ruling that says that it was not at all obvious at the time that this is how events would play out because the majority 5-4 ruling by justice Anthony Kennedy consisted of two almost independent sections that left somewhat vague as to how the combination was to be interpreted.

The first part was about federalism and said that states had the right to define marriage and the federal government had to simply go along with their decision. DOMA had infringed on the sovereignty of states by defining marriage as only between man and a woman and was thus unconstitutional because New York state had decided otherwise.

The second part of the ruling said that DOMA was unconstitutional because it offended basic principles of equality and because it targeted a particular group to be denied rights and privileges for no justifiable reason except moral disapproval of their conduct. By targeting same-sex couple for exclusion from the rights and privileges of marriage, it violated the due process clause of the Fifth Amendment to the US Constitution.

Cohen and Lithwick argue that it was not clear from the majority opinion as to which of the two arguments was the key basis for ruling DOMA unconstitutional. If it was the first alone, or if the second was unconstitutional only when it was in conjunction with the first, then it could be argued that states still had the right to discriminate against same-sex couples. In fact, chief justice John Roberts in his dissent argued that the ruling was only about states’ rights and should not be taken to imply that state bans on same-sex marriages were unconstitutional. Justice Scalia agreed with Roberts but in his sarcastic dissent warned that the first part was “fooling many readers, I am sure, into thinking that this is a federalism opinion” but that the second part would be seized upon and give lower courts an opening to rule that state bans on same-sex marriages are unconstitutional.

And so it turned out.

Lower courts have ignored Roberts’s caveat and acted exactly as Scalia warned. As Cohen and Lithwick write:

A survey of publicly available opinions shows that in the eight months since Windsor, 18 court decisions have addressed an issue of equality based on sexual orientation. And in those 18 cases, equality has won every single time.

The tally is even starker when you look at the number of judges who have considered the issue. Since Windsor, in these 18 decisions, 32 different judges have considered whether Windsor is merely about the relationship between the state and federal governments or whether it is about equality. And all 32 of them have found for equality. In other words, 32 accomplished, intelligent lawyers, appointed by Democrats and Republicans, whose job it is to read precedent, have ruled for equality. Not a single one has disagreed.

Whatever doubt there may have been about the legal predicate of the case following Windsor is now gone. The questions left in the wake of the decision don’t matter anymore. Thirty-two judges over 18 decisions make it crystal clear: Windsor, whether it intended to or not, is a powerful decision against discrimination, and for equality.

According to Cohen and Lithwick, given the weight of all these cases, there is no going back and no doubt that the fat lady is going to sing very soon. I think they are right.


  1. Chiroptera says

    Kennedy: I want to do the decent thing in this case, but I don’t want to set a precedent that will force lower courts to do the decent thing.

    Scalia: I warn you, this won’t work. Act decently now, and then everyone will be decent! Best to just stay evil on this.

  2. gshelley says

    I find it amusing that Scalia’s whiny dissent has actually been quoted in favor of overtuning these bans
    It’s not clear how this will go at the Supreme court. I imagine Kennedy can see the logic of his argument, but he probably strongly supports states rights and is uncomfortable with following through. If it was just one case, I suspect he would agree to overturn it, but the more cases there are, the more the sense that this is a consensus and the more he might go along with it, esepcially if we can get some states to overturn their laws either in the legislature or by referendum


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