Today’s decision overturning Section 3 of the Defense of Marriage Act was, as President Obama tweeted, “a historic step forward” for marriage equality. Beyond the issue of marriage, however, the ruling created a new recognition for gay people — both under the law and in reality — that must be highlighted.
In these decisions, the Court had the opportunity to apply a level of heightened scrutiny based on sexual orientation. Though the Justices stopped short of an “intermediate” or “strict” scrutiny legal determination, they still acknowledged that “careful consideration” is required when determining if a law is motivated by improper animus or purpose. It could have overturned DOMA by simply ruling that the federal government overstepped its authority by limiting the definition of marriage, but it went a step further and ruled that the law violated same-sex couples’ right to equal protection under the Fifth Amendment.
Writing for the Majority, Justice Kennedy explicitly explained how DOMA “seeks to injure” and stigmatize gay people as a class:
DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.
In a sense, Kennedy has avoided directly addressing questions like whether homosexuality is immutable, but by referring instead to same-sex couples as a class, the effect is largely the same. DOMA, he wrote, treats same-sex marriages as “second-class marriages,” and “writes inequality” into the law:
DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. […]
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.
The Court’s recognition of these children and their families — including recognition later in the opinion that they experience “financial harm” because of DOMA — is key. Opponents of marriage regularly asserted that “marriage” was somehow about what’s best for children, but they never had any comment to offer about the children already being raised by same-sex parents and how they would benefit from marriage.
That is the reality of the gay community. Lives have already been underway in spite of discriminatory laws. Conservatives always treated the issue as if gay people simply were not part of society — if they could just keep the laws discriminatory, then the gay community would never flourish, even though it already was. For the first time in legal history, the Court has validated these lives and ordered their equal treatment under the law. This is a step that cannot be taken back.