The “Gay” Marriage Misdirection: Justice Alito Gets It Wrong in Windsor

Judge Vaughn Walker's opinion in the first round of the Perry litigation, the case that overturned Proposition 8 in
California, he described what the two same-sex couples in that case were seeking as
something that was not new or different, but rather what opposite-sex couples
already have –- recognition of their relationships "for what they are: marriages."

By contrast, Justice Alito sees "traditional" marriage, which is "intrinsically opposite-sex," as a
fundamentally different institution from "consent-based" marriage, which
includes "same-sex marriage." The right
to marriage, he suggests, may be worthy of constitutional protection, or in
Supreme Court jargon, a "fundamental right … deeply rooted in this Nation's
history and traditions." But, he ultimately concludes, "it
is beyond dispute that the right to same-sex marriage is not deeply rooted in
this Nation's history and tradition." Therefore, he argues, Edie Windsor was seeking a "very new
right" that unelected judges should resist recognizing in deference to the
legislative will of the people.

distinction between opposite-sex and same-sex marriage is artificial and wrong,
and harmful to the marriage equality movement. It matters not just in public opinion, where opponents use "gay
marriage" instead of "same-sex marriage" as a derogatory expression of
inequality, an implication that same-sex couples' marriages are different from those of opposite-sex couples.  It also matters
in the legal world, as Justice Alito's passage demonstrates.

brief Supreme Court primer: when the Court views a right as fundamental to our
individual liberties, it will closely scrutinize any law that interferes with
that right. Recall our earlier discussions of levels of scrutiny as akin to hurdles on a racetrack: the higher the hurdle, the harder to jump over; the higher the level of scrutiny, the harder it will be for a law to pass constitutional muster. So, the Court is far more
likely to strike down a law interfering with a fundamental right, for example
the right to use contraception, than if a law interferes with a non-fundamental
right, for example a right to smoke marijuana.

When (not if) a marriage equality case returns to the Court to decide if
states like Texas or Alabama are constitutionally required to allow same-sex couples to marry, it may turn on
whether those states can come up with compelling reasons for their laws; if
marriage equality is considered a fundamental right, the states' reasons will
have to be far more compelling, and they will be unlikely to succeed.

Supreme Court decides whether or not there is a "fundamental right" protected by the constitution by looking to "history
and tradition," as Justice Alito referenced in his dissent, to see if society
has generally protected that right. And
here is where the distinction between "marriage" and "same-sex marriage" becomes crucial.  

this framework, Justice Alito looked specifically at a right to "same-sex
marriage" as the appropriate analysis in Windsor,
rather than a general right to "marriage." Of course the problem is that Alito is correct when he frames the case in this narrow way — there is in fact a long history of protecting marriage (including several
prior Supreme Court cases), but only a modest and recent tradition of "same-sex
marriage." Indeed, newer than cell
phones or the internet! Thus, there could be no fundamental right for same-sex couples to
same-sex marry under Justice Alito’s approach. 

the doctrine in legalese, but we don’t think it takes a lawyer to see, or at
least feel, that there's something deeply wrong with this approach. By examining the right to marry as "same-sex
marriage," Justice Alito looked to our history and traditions not only to
determine what right Edie Windsor was
asserting (the right to marriage) but also who
gets to exercise it (only opposite-sex couples). Simply
put, that's not how fundamental rights should work. If there is a history and tradition of
discrimination against someone, denying a group their ability to exercise a
fundamental right, the Court is supposed to rectify that, not ratify it; but by
considering both what and who, Justice Alito would say that
decades of discrimination against same-sex couples are part of our history and
tradition, and should thus continue.

This is precisely what the majority did in Bowers v. Hardwick, the infamous case allowed states to criminalize same-sex sodomy: instead of recognizing that what was at issue in the case was the liberty of gay persons to express themselves intimately, a right shared by heterosexuals and gays alike, the majority framed the debate as one of whether the Constitution protected a fundamental right to "same-sex sodomy." Did the Constitution give us a right to gay sex? Of course not, when framed in those terms. The Bowers Court defined fundamental rights based on what right was being asserted and who was asserting it, thus perpetuating the discrimination embodied in anti-sodomy laws.

Our-marriage2Justice Alito is, quite simply, wrong. Once a right is fundamental, it is presumed fundamental for everyone. It didn’t matter that there was no
deep-rooted history of "interracial marriage" in 1967; the Supreme Court held
in Loving v. Virginia that Virginia's
antimiscegenation law violated a right to "marriage." And it's irrelevant now that there's no
tradition of "same-sex marriage" in 2013 because, as Judge Walker noted, this
isn't about the who but about the what
What's at stake is marriage. Historically, same-sex couples have been discriminated against and not
allowed to marry.  The Court cannot invoke
that history of discrimination to say that there is no history of a right to
same-sex marriage!

All of this hinges on a few
key words, and whether the subject of the marriage equality battle is phrased
in a way that makes our rights different — "same-sex marriage" — or equal — "marriage." Justice Alito should have
been more careful in his analysis, and his dissent serves a reminder to us all
that words matter in public debate and in legal analysis. So the next time you catch yourself saying "same-sex marriage," try to use something like "marriage equality" or "marriage
for same-sex couples" or simply "marriage" instead. Because while same-sex couples' ability to
marry is indeed a more recent development than cell phones or the iInternet,
our right to marry is just as
deeply rooted in the constitutional principles of equality as everyone else's.


Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

Brian Chelcun is a 2013 graduate of New York University Law School. This column comes largely from a symposium piece he published in the N.Y.U. Review of Law and Social Change.


  1. Jay says

    Nice analysis. The real point of course is that Alito is a weasel who wants to find some way to prevent gay people from having equal rights. He isn’t interested in justice or affording citizens equal rights.

  2. RWG says

    I second Jay’s comment. Alito is a weasel with no interest in justice or equal rights. He is the very worst sort of corporate thug, only in black robes with a life-time appointment.

  3. Mark says

    Alito’s reference to “conjugal” marriage (the invented Robbie George term) also gave the game away. No state has “conjugal” marriage in the strict sense–the physically disabled can marry, the elderly can marry–and so for Alito to frame this vision of marriage as the one threatened by ‘same-sex marriage’ was absurd.

  4. Kyle says

    Well that is the essence of the liberal/conservative judicial divide. Conservatives believe that fundamental constitutional rights only exist if they are deeply rooted in nation’s history and tradition, which means that they are not apt to find that there is a constitutional right to things that were not socially or legally acceptable in the 18th, 19th, and early 20th centuries.

  5. Matt says

    I think the women’s suffrage movement provides a powerful analogy here. Extending marriage rights to same-sex couples ‘redefines’ marriage in essentially the same way that the 19th Amendment ‘redefined’ voting. “Same-sex marriage” is not a separate institution from “traditional marriage” for the same reason that “the female vote” is not a separate institution from “the male vote”. By Alito’s argument, there can never be ANY extension of recognition of fundamental rights to groups that have traditionally been prevented from exercising those rights. Alito is an idiot.

  6. DC Insider says

    Kyle identifies the issue well. It is a false dichotomy however, as conservatives use that view when convenient to a particular end, and abandon it with equal force when the end might not be what they seek.

    If either Scalia or Alito were actually consistent in their beliefs, I might give them credit. But the two are such blowhard phonies about their “principles” and so easily divested of their theories that they are easily exposed as simply conservative Republican politicians in black robes.

    Activist court indeed.

  7. sfbob says

    It probably is instructive that we look at Justice Kagan for a contrasting way of viewing things. During her confirmation hearing she averred that there was “no fundamental right to gay marriage.” She was not, however, quizzed about her views on a fundamental right to MARRIAGE. That right has, since the era of Loving vs Virginia, generally been assumed to infer that unless you plan to marry a minor or a close relative (the definition of how close is too close being left up to the individual states), your right to marry the person you wish to marry may not be infringed upon other than for the most compelling of reasons. So despite the statement Kagan made which some might have found to be disheartening, it is clear she knew what she was doing. There is no right to a particular kind of marriage; there is a right to marriage, plain and simple. Alito clearly knows what he’s doing as well: he’s mischaracterizing the nature of the right at stake so he can rule in accordance with his prejudices.

  8. Rob says

    If the suggestion that we as individuals should be more mindful of the language we use in regards to marriage and marriage equality, it would be helpful if writers and editors at Towleroad did the same. One of the tags at the bottom of this article is “Gay Marriage” which then links to many articles on this site using the phrases “gay marriage” or “same-sex marriage” in their titles. I respectfully suggest updating the tag and going forward the terminology used (in titles especially) as a way to help influence our community’s language.

  9. Rrhain says

    My quibble is with the comment, “Did the Constitution give us a right to gay sex? Of course not, when framed in those terms.”

    Um, yes, it did. We do have a Constitutional right to sodomy. I realize that people don’t like thinking that the Constitution protects such “crude” and “base” activities like sex, but that is only because people think that sex is somehow “crude” or “base.”

    Physical intimacy with another person is a fundamental right. And that includes sex. And that includes anal and oral sex. This is not something to shy away from. Part of the reason that we have such problems regarding sexual orientation is because we are so hung up on the concept of sex in and of itself.

    Now, I realize that even my own justification tries to “elevate” the concept by referring to interpersonal relationships and thus we’re dealing with the right of association. And yes, that’s an extremely important aspect, but we cannot lose sight of the trees for the forest. Sex in all its primal glory is part of those associations and it is to our detriment that we get skittish about it.

  10. anon says

    Actually, criticism of Alito’s dissent should really be based on the fact he did not address the merits of the majority’s ruling. He and Scalia went off on a tangent because they thought the majority was going to rule in favor of gay marriage nationwide, when in fact they did not. DOMA was decided on due process grounds and Prop 8 was resolved on a technicality without any real legal precedent (unless you count another bad ruling on standing in federal court). Alito is tilting at windmills that don’t really exist.

    The other half of the argument is that we are always dealing with the flaws built into the constitution itself. It’s an uneven document with little legal guidance for the courts on the issues that became apparent just before and after the civil war. A document that was designed primarily to prevent a runaway federal government suddenly found itself restraining the states as well, and all sorts of awkward issues came to the fore. For example, if a right is not mentioned explicitly in the text, but everyone assumes it exists, such as the right to marriage, how to provide legal precedent? The answer was “history and tradition”. That’s a kludge to paper over a flaw/hole in the text. Does the federal govt. have any jurisdiction over marriage? Who knows? If a right is grounded in tradition, to what extent can the states regulate it? Who knows? The fact we have scrutiny levels is again a kludge by the courts designed to handle real world issues not addressed by the text. It goes on and on. It would only take about five to ten amendments to sort all this out, but because of policy ramifications, no consensus would form on the text of those amendments.

  11. Eric Payne says

    Over the past few years I (as well as a handful of others) have been taking to task Joe.My.God. GayAmericablog, the Huffington Post and even Towleroad over the use os labels making a distinction in marriage.

    On November 2, 2010, my husband and I married in Boston, after living together over 16 years. When we applied for our license, we were directed to the same window as every other couple in line. There was no “same sex” special location. Our license was no more expensive than any other couples’ license. There is no special titling of the marriage license. The wording of the ceremony was no different than the wording of the straight couple who immediately preceded us (we had a simple City Hall ceremony).

    We simply were, and are, married.

  12. Kyle says

    Rrhain, while I understand what you are saying, public arguments must be made in a manner that is most palatable and winnable, and making it about sex is just not the way to win in the court of public opinion. Our society is still very negative about overtly sexual matters of all types.

  13. Kyle says

    Rrhain, while I understand what you are saying, public arguments must be made in a manner that is most palatable and winnable, and making it about sex is just not the way to win in the court of public opinion. Our society is still very negative about overtly sexual matters of all types.

  14. Eric Payne says

    Someone mentioned the Menendez brothers having married while incarcerated. Though Ted Bundy used a trick wording of law to marry while being prosecuted in Florida (a public declaration of intent, in court, using very specific language ) and then, while on Death Row, secretively impregnate his wife, Charles “Tex” Watson, married while incarcerated with the full blessing of the California Department of Corrections. While serving a life sentence, he’s used “conjugal visits” to father children.

    Think NOM values Watsons’ “traditional marriage” as much as Brian Brown’s?

  15. Rrhain says

    @ANON: The Constitution explicitly addresses your point in the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    The Constitution is not a laundry list. This is part and parcel of why the “textualist” and “originalist” doctrines are so flawed. The Constitution directly tells you that it is more than just the individual words and intents of the authors.

    @KYLE: Oh, I understand the political difficulties with being direct about freedom of sexual expression. But look at the trouble we have when we shy away from it. Cuccinelli is trying to enforce the state’s sodomy laws, making all sexual activity that isn’t explicitly penis/vagina a crime. Because we cannot talk about the specifics of that case without seeming shame and embarassment, because we have to keep hiding behind other concepts rather than face the subject head on, we will always be having this fight.

    Part of the motivation behind the issues of interracial relationships has to do with sex. We cannot handle the concept of a black man having sex with a white woman.

    I’m hardly saying that we should abandon all other methods of argumentation, but we need to recognize the underlying issue: People wanting to be able to shriek, “EWWWWW!” and still be considered respectable.

  16. MiddleoftheRoader says

    The simplest analogy that shows why Alito is wrong involves inter-racial marriage. Because a majority of states had banned inter-racial marriage for a century, it is hard to claim that “inter-racial marriage” is a fundamental right. However, the Supreme Court focused on whether “marriage” is a fundamental right — and when it said yes, it also said that this fundamental right cannot be denied to inter-racial couples.

    It’s the same for “same-sex marriage” — because “marriage” is a fundamental right, can it be denied to same-sex partners? As in the inter-racial marriage cases, the answer is “no” — of course the Supreme Court hasn’t said this yet, but that’s Phase II of all of the litigation over this issue.

    By the way, the “beauty” of Justice Kennedy’s DOMA opinion is that in addressing the issue from a FEDERAL law perspective, he said so many things that will allow courts to strike down STATE anti-marriage laws as unconstitutional. He has let the states (and lower courts) address this issue, and so far most of the results are good (e.g. Michigan, Ohio) — judges are ruling that STATE bans are unconstitutional. So, like the DOMA case which reached the Supreme Court after several lower court cases found DOMA to be unconstitutional, we are now building up several lower court cases that find STATE bans to be unconstitutional. That allows the Supreme Court to reach the same conclusion, without appearing “radical” – -because it’s doing the same thing that many lower court judges have done.

  17. Rob says

    Very nicely said, Matt. Arguments against women’s suffrage, abolitionism, and civil rights were very similar to Scalito’s, and just as specious.

  18. seamus says

    Scalia, Alito, and a few others on the SCOTUS bench cannot help their collective ignorance They are all Roman Catholics. A good example of an oxymoron or a contradiction in terms can be stated as Catholic Intellectual. In this twenty-first century, religion, especially the Catholic faith, inhibits true intellectual inquiry.

  19. Kelly in AC says

    What make Alito’s argument even more wrong is that he expects gay people to exercise the traditional right (right to marry someone of the opposite sex) and not the “new” right (right to marry someone of the same-sex).

  20. says

    here is the Constitutional Amendment I am proposing:

    Section 1: The right of two persons to marry each other shall not be abridged or denied by the United States nor by any State because the persons are of the same sex.

    Section 2: Congress shall have power to enforce this Article by appropriate legislation.

    Section 3: Notwithstanding any thing in this Article, or on the Constitution or laws of the United States, or of any State, homosexuals are still a bunch of sickos.

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