Kennedy's opinion has some of the kind of pro-marriage equality language we were hoping for. He spoke of the unending love Edie Windsor had for her late wife, Thea Spyer (13). He recognized that same-sex marriage may have been foreign to most Americans thirty years ago, but "a new perspective, a new insight" moved several states to let gay couples express their love "by their commitment to each other" (14). There were no caveats, no hedges, no suggestions that marriage unions were for bearing children or to protect the promiscuous heterosexual (scroll down to "Children and Family"); rather, for Kennedy, marriage was purely about love and commitment, exactly what we have been saying.
Justice Scalia harped on Kennedy's discussion of the federalism issues raised by DOMA Section 3. For 5 pages, Kennedy discussed the fact that marriage was traditionally the exclusive realm of the states and that the federal government almost always recognized whatever marriages the states said were valid. He makes clear that DOMA, by codifying a federal definition of marriage binding on the states for the first time in the nation's history, intruded into a traditional state prerogative. But he makes clear that "[d]espite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance" (18). Scalia argued that this meant that kennedy spoke about federalism like Alaska's Bridge to Nowhere: a lot of pomp, no meaning.
Scalia should have read the next several sentences, which are worth quoting in full:
The State's power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State's decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. … The Federal government uses this state-defined class for the opposite purpose — to impose restrictions and disabilities. The result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment.
Kennedy never suggested that DOMA's federalism problem was the source of its unconstitutionality. Nor did he ever suggest that federalism issues were irrelevant. Instead, he argued that the enormity of DOMA's federal overreach was a cue, a hint that something fishy is going on. Because Congress went out of its way to invade state prerogatives and because it did so to place a burden on the very class that certain states had already decided to honor, Congress's audacity was suspicious.
For Kennedy, DOMA's federalism overreach was a symptom of some disease that required further investigation. Like stomach pains, a headache, and a persistent low-grade fever: a physician does not look at those three symptoms and immediately treat for cancer or HIV or Crohn's Disease. Instead, she sees these symptoms as cues to do more tests and perhaps determine that a common virus is the culprit.
The further test was the Court's "careful consideration." The very unprecedented nature of DOMA's overreach caused Kennedy and the rest of the majority to take a special look at what Congress was doing. This sounded quite a bit like "rational basis with bite" that is taught in law schools and looked almost identical to the First Circuit's decision striking down DOMA in Gill v. Office of Personnel Management. Sure, we would have preferred a clearer standard. We also would have preferred higher scrutiny that some level between the lowest level and something higher. But that doesn't mean that Kennedy's chosen level of scrutiny cannot be applied in the future to strike down antigay laws. Nor does it mean that the opinion is confusing or convoluted.
DOMA harmed the very class of persons — married gay couples — that the States sought to protect. DOMA's "unusual deviation" (20) from the traditional relationship the federal government has with the states when it comes to marriage law "deprive[d] same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages," which was "strong evidence" that DOMA simply and dangerously expressed bare disapproval of gay couples (20-21). DOMA imposed "a disadvantage, a separate status, and … a stigma upon all who enter into same-sex marriages" (21). It selected a subclass — married gays — and, quite simply, "made them unequal" (22). That the Constitution cannot abide.
I'm not sure how Kennedy could have been more clear.
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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.