The Supreme Court just handed down a 5-4 decision striking the unconstitutional Defense of Marriage Act. According to Justice Anthony Kennedy’s opinion for the Court, “[t]he federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”
Shortly thereafter, the Court also handed down a 5-4 decision holding that supporters of California’s anti-gay Proposition 8 did not have legal standing to appeal District Judge Vaughn Walker’s decision striking the marriage ban. The likely impact of this decision is that Walker’s injunction against Prop 8 will allow California to perform same-sex marriages once again — or at least that California’s top elected officials will be able to read Walker’s opinion this way — although there is some uncertainty whether Walker actually has the power to enjoin an entire state. For this reason, the status of Prop 8 is, for the moment, unclear.
Although Justice Kennedy’s opinion in the DOMA case alludes to some questionable states rights views that he expressed during oral argument, the opinion is firmly rooted in the equal rights and equal dignity that same-sex couples share with straight ones. As the Court explains,
By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state sanctioned same-sex marriages; for it tells those couples and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
At oral argument, Kennedy appeared ready to adopt a very radical view of states rights that would strip Congress’ power to enact DOMA, but which could also potentially endanger Medicare and other federal benefits programs by stripping away the federal government’s power to define who receives these benefits. Part III of Kennedy’s opinion nods sharply at Kennedy’s states’ rights views, but it also establishes that today’s opinion is rooted in equality, not in any new attempt to shrink federal power. As Kennedy writes, “it is unnecessary to decide whether [DOMA’s] federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.”
Instead, Kennedy’s opinion appears to adopt a compromise position Justice Elena Kagan floated at oral argument. “In determining whether a law is motived by an improper animus or purpose,” Kennedy writes, “‘[d]iscriminations of an unusual character’ especially require careful consideration.” The fact that DOMA departs from the usual federal practice of let states decide who is married “is strong evidence of a law having the purpose and effect of disapproval of that class.”
Yet, while Kennedy’s allusions to states’ rights do not work a revolution in the scope of federal power, they do have very unfortunate implications for gay couples in places like Texas and Alabama. For the moment, at least, a majority of the Court was unwilling to strike a law restricting same-sex marriage without speaking at length about the traditionally broad role states have enjoyed in determining who is married. This will not necessarily prevent the federal government from recognizing such marriages throughout the nation and according many benefits to same-sex couples, but it does suggest that America has a little ways to go before Texas will have to afford gay couples the same dignity they enjoy in marriage equality states.