Private: The Windsor & Perry Opinions Offer a Glass about Twenty-Five Percent Full

by Deirdre M. Bowen, Associate Professor of Law, Seattle University School of Law

Without a doubt, the Supreme Court’s ruling in United States v.Windsor No. 12-307 (June 26, 2013) offers immense hope for same-sex couples, at least for those who reside in states that allow same-sex couples to marry.

The Supreme Court affirmed a Second Circuit opinion that determined Section 3 of the Defense of Marriage Act (“DOMA”), which defines marriage as the union of a man and a woman, is unconstitutional as applied to New York resident Edith Windsor, the widow and executor of her wife’s estate. What is remarkable, however, is how the Supreme Court essentially ignored the Second Circuit’s rationale and developed its own.

The Second Circuit laid out a clear Equal Protection analysis of DOMA. In doing so, it bumped up the tier of scrutiny from rational basis, which the Southern District of New York Court applied, in favor of intermediate analysis, based on its finding that lesbians and gay men were a quasi-suspect class. Specifically, the Second Circuit found, after engaging in a four-part factor analysis, that gay people have been the target of discrimination and mistreatment in public and private spheres in the United States, and this triggered an intermediate level of scrutiny. The Second Circuit then evaluated the reasons that the Bipartisan Legal Advisory Group (“BLAG”) offered to determine whether these reasons were substantially related to an important government interest. In this task, the Second Circuit determined that BLAG had failed to demonstrate persuasive set of rationales.

The Supreme Court abandoned this approach, and instead focused its attention on two other issues -- federalism and a seeming combination of Equal Protection/ Fifth Amendment Due Process/Liberty Interests. While Justices Scalia and Alito expressed some skepticism regarding the sincerity of the majority opinion’s application of federalism doctrine, Justice Kennedy, writing for the majority, devoted a significant amount of time to the topic. He went to great lengths to emphasize that the definition and regulation of marriage, by law, history, and tradition, is within the province of state power and authority. Id. at 16. But Kennedy noted that federalism is not the defining feature of the Windsor opinion: “The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism.” Id. at 18.

The Windsor opinion thus dipped into the waters of federalism instead of diving deeply into them. By making this choice, the Court is actually signaling a compromise position. This case, in conjunction with the Hollingsworth v. Perry No. 12-144 (June 26, 2013) had the potential to create a seismic shift in the political, social and legal landscape of America that could have resulted in the kind of legacy left by Roe v. Wade, some 40 years ago. Roe is perceived by many as a law that was far ahead of public opinion. Currently, a bare majority of the U.S. population supports same-sex marriage.

But the Windsor opinion uses federalism to pay respect to the diverse social communities in each of the states. It allows for the possibility of a middle ground in which the majority of states, which still bar same sex marriage, can come to terms with the notion through a socio-political evolution that fits within the cultural framework of a particular state, rather than through a legal mandate from on high. Justice Kennedy made that clear when he wrote, “[M]arriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent when challenged. For others, however, came the beginning of a new perspective, a new insight.” Id. at 13.

With this compromise position in hand, the Court crafted a narrow opinion in that it rules that section 3 of DOMA violates the Fifth Amendment -- but only for those same-sex marriages deemed lawful in the twelve states that currently permit them. The Court’s reasoning begins with the premise that Congress came up with a definition of marriage when it enacted DOMA. The legislative history of DOMA reveals, according to the Court, that Congress had the desire to harm a politically unpopular group in developing this definition. “The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.” Id. at 21. In turn, these married couples are placed in a second tier marriage. The Court finds this status problematic for two reasons. First, same-sex married couples are demeaned because of the “moral and sexual choices” that they have made, despite the fact that the Constitution protects those “choices.” Second, DOMA’s effect is to strip the personhood and dignity of these citizens for whom some states have sought to protect. Such an act deprives these citizens equal protection under the liberty clause of the Fifth Amendment.  And unlike the lower courts that have addressed DOMA, the Supreme Court’s reasoning focused on the motive behind DOMA rather than its articulated purpose. In fact, it dismissed any reasons offered by BLAG for DOMA’s legitimacy in one sentence. “No legitimate purpose overcomes the purpose and effect to disparage and to injure….” Id. at 25-26. Interestingly, the Court did not describe any of the reasons that BLAG presented.

But the majority placed a significant caveat in its reasoning: by limiting the reach of its Fifth Amendment protection to states where same-sex marriage is already legal, same sex couples residing in states that don’t permit same-sex marriage apparently don’t fall within the ambit of the Court’s reasoning; that is, their concerns about humiliation and degradation are not and cannot be reached. Thus Windsor, while signaling its disapproval of DOMA’s definition-of-marriage provisions, nonetheless provides wide deference to states to determine the meaning of marriage.

In dissent, Justice Scalia points out that, under the Windsor opinion’s use of animus analysis, the door is now wide open to consider the motivations behind the mini-DOMAs (state enacted legislation mirroring the federal DOMA statute) and super-DOMAs (state constitutional Amendments that define marriage as between a man and a woman) that are the law in 37 states. Both Justices Scalia and Alito took umbrage with the idea that Congress was motivated by malice in drafting DOMA.

Nonetheless, the majority opinion steers clear of much of the rhetoric that has surrounded the same-sex marriage debate. Namely, the claims that DOMA is needed to protect traditional marriage from the ongoing assault it encounters and that same-sex marriage will further undermine family stability. Interestingly, Justice Kennedy adopts the language of family stability only to note that the second-class status that DOMA accords same-sex marriages undermines the stability of those marriages.

In fact, only Justice Alito’s dissent even hints at the discussion regarding the as yet unknown effects of same sex marriage on the traditional institution of marriage. However, in a forthcoming study that I just completed, I find that the legislative history and public discourse that accompanies the enactment of a state DOMA statute mirrors the language adopted when the federal DOMA was passed. The study compares the change in marriage and divorce trends before and after the enactment of a state DOMA with non-DOMA states. The results show that marriage and divorce is on the decline everywhere, but more so in DOMA states. However, any differences that exist are not statistically significant. Thus, DOMAs big and small do not appear to achieve their desired effect. Maybe this is the point to which Kennedy was alluding by dismissing the equal protection analysis in favor of the animus analysis.

Regardless, one can only hope that second class status conferred on same-sex families by the remaining 37 states will soon be remedied in light of Windsor. Because, as it stands, the Fifth Amendment currently applies only to gay citizens who’ve chosen the correct address.

Constitutional Interpretation, Equality and Liberty, LGBTQ Equality, Supreme Court