The "What's Next" series takes an in depth look at marriage and gay rights, in general, after the Supreme Court's momentous rulings striking down the Defense of Marriage Act and Prop 8. Today's column looks at Justice Kennedy's majority opinion in Windsor.
Last week, we discussed Justice Scalia's bombastic dissent in Windsor v. United States, the case where the Supreme Court struck down DOMA Section 3. Today, I would like to discuss what got him so angry -- namely, Justice Kennedy's majority opinion.
That Kennedy wrote another gay rights decision surprised few; he had, after all, written the two most important majority opinions affecting gays and lesbians, Romer v. Evans (1996) and Lawrence v. Texas (2003). What also came as no surprise to some who study and teach Romer and Lawrence was that like Lawrence, the Windsor decision was pro-equality, but not too bold; progressive, but not so much so; a positive result, but -- supposedly -- somewhat doctrinally confusing and convoluted.
If it is true that Kennedy's decision is unclear, why would that matter, other than to stuffy professors in the ivory towers of law schools? The primary implication of Kennedy's opinion, however confusing or not, is undoubtedly the fact that DOMA Section 3 is dead and that legally married same-sex couples can start receiving most federal benefits. But a confusing opinion gives confusing, incomplete, and malleable instructions to the lower court judges who interpret most of the law but get much less press. Unclear decisions allow inferior courts to narrow their reach, neutering what should be road, pro-equality decisions. So, the more confusing an opinion, the more room it gives its opponents to weaken it.
Many commentators -- not to mention my lawyer friends and colleagues -- are already lamenting that Windsor is confusing and frustrating. It will always be the role of the law professor and the lawyer to give future courts that will apply Windsor the best interpretation of the meaning of that case. But I resist the growing conventional wisdom. Kennedy's decision is not generally confusing or unclear. It may frustrate us that he did not go as far as we would have liked, but the decision lends itself to a clear, broad, pro-equality interpretation that can only be frustrated by willful and purposeful blindness. AFTER THE JUMP, I show the breadth and clarity of Kennedy's Windsor decision.
CONTINUED, AFTER THE JUMP...