Edie Windsor Hub
Beyond that, the Supreme Court, in a majority opinion written by Justice Anthony Kennedy and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, declared that Congress's attempt to deny federal recognition to legally married same-sex couples was just another example of bald stigmatization of a disadvantaged group. DOMA "humiliates" and "burdens" and creates a "separate status" for gay couples and, therefore, violates due process and equal protection guaranteed by the Fifth Amendment to the Constitution.
That's the DOMA decision in a nutshell. And although we know complex questions remain, we cannot deny that the end of DOMA is momentous. For the first time, the Supreme Court advanced the inherent equality of gay couples and looked with favor on the legitimacy of those marriages, at least when it comes to federal recognition of state-sanctioned unions.
Let's take a moment to celebrate and then bury ourselves in the details. It will take time to go through the decision with the rigor it deserves and rest assured, we will be covering this case for some time. For now, here are my five initial take aways from the decision in Windsor v. United States:
1. Jurisdiction was a red herring. There is a controversy and disagreement here, and there is no connection between having jurisdiction here and lack of standing in Prop 8.
2. No heightened scrutiny. The Court didn't need it because DOMA was particularly irrational. Still, the Court used a level of scrutiny higher than rational basis. A clear statement of that standard is not the best outcome (which would have been heightened scrutiny), but it got the job done.
3. This was a very Kennedy-esque decision. The opinion striking down DOMA reads like Kennedy's opinions in Romer and Lawrence.
4. Federalism issues played a role, but the decision was not limited to those questions.
5. The importance of marriage. This will mean a lot for when a gay marriage case comes through the courts next.
CONTINUED, AFTER THE JUMP...
The New Yorker reports on the moment Edie Windsor learned of the DOMA ruling:
Everyone at the apartment of Roberta Kaplan, the lawyer who argued Edith Windsor’s successful challenge to the Defense of Marriage Act, exploded in screams and sobs when the ruling came down. Kaplan called her mother and said, “Total victory, Mom: it couldn’t be better.” Windsor said, “I wanna go to Stonewall right now!” Then she called a friend and said, “Please get married right away!”
Photographs, of Edith Windsor and Roberta Kaplan, by Ariel Levy.
DOMA plaintiff Edie Windsor was given the school's Presidential Medal, and Prop. 8 lawyer David Boies was the keynote speaker. Mr. Boies received a Doctor of Laws degree, honoris causa. He was introduced by constitutional law professor Kenji Yoshino (second video).
Said Boies: "One of the platitudes of our country is that all people are created equal. I can't tell you today how the Supreme Court is going to rule in June but what I can tell you is that if we don't win it in Perry we will continue the fight until we do win it. So congratulations, and join us in trying to make platitudes real."
Watch, AFTER THE JUMP...
For three hours over two days, the Supreme Court discussed the freedom to marry. The justices asked questions about the law of the love after recent polling showed that 58 % of Americans, and a slew of moderate-to-conservative politicians, supported equality. This trend caught the attention of an unusually ascerbic Chief Justice, who said that leaders were "falling over themselves" to support gay rights. His convenient ignorance of the litany of burdens and discriminations we face every day, his insensitivity and willful ignorance of the plight of sexual minorities, and Roberta Kaplan's inadequate response to his flippancy should not damper the euphoric feeling that what happened this week was historic. The freedom to marry had a hearing at the Supreme Court, where the shallowness of discrimination was laid bare for the world to see. As we await favorable decisions in June, the world is a different place today than it was on Monday.
Many media are making conclusions about the end of DOMA, a narrow standing decision in the Prop 8 case, and the end of the culture wars with a victory for gay rights. Some of these predictions may turn out to be right, but we can't know that and it misses the true legal and political lessons from the last two days.
Having already offered detailed summaries and initial analysis of the Prop 8 (Part 1 and Part 2) and DOMA hearings (Part 1 and Part 2), I would like to take a step back and think more broadly. Here are the seven takeaways from Marriage Week at the Supreme Court.
1. The bench was "hot," asking lots of questions, but don't read too much into those questions.
Just because a justice asks a question critiquing one side's argument does not necessarily point to his or her ultimate decision. Judges play the devil's advocate for many reasons other than preening. If these cases were so open and shut, there would be no need for briefs, reply briefs, and oral argument; neither side ever has a perfect case. Therefore, the justices need to probe the logical, legal, and policy problems, not only to help them decide the case but also to determine the best way to decide the ultimate question. Oral argument questions are also just as much about persuading colleagues as challenging attorneys. Justice Ginsburg may have thought of something that the Chief Justice missed, or vice versa; Justice Sotomayor's demand that Paul Clement give her a single reason for discriminating against gay couples, and his inability to do so, may have worried the Chief and Justices Kennedy and Alito about siding with an impossibly weak argument.
SIX ADDITIONAL TAKEAWAYS, AFTER THE JUMP...
Tweets the Courage Campaign: "We're seeing strong support outside today, but not as hectic as yesterday was."
Watch the activity outside the court LIVE now.
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