by Suzanne Goldberg, Professor of Law at Columbia Law School. Professor Goldberg was counsel of record on an amicus brief in support of the respondents in Hollingsworth v. Perry and was among the counsel on an amicus brief in support of the respondents in United States v. Windsor. This piece is a cross-post from SCOTUSblog.
The Court’s decisions in Windsor and Perry – the first major gay rights rulings in a decade – are a one-two punch to the nation’s most prominent antigay laws. Today, the Court has brought an end to the damage wrought by the federal Defense of Marriage Act on countless same-sex couples throughout the United States and left in place Proposition 8’s invalidation by the federal district court.
Neither decision is surprising but both are gratifying. And both reinforce the dramatic shift in the Court’s approach to gay rights – and to gay people. Just over a generation ago, in the Court’s 1986 Bowers v. Hardwick ruling, the Court held that it was “at best facetious” that a gay person would have a constitutional right to sexual intimacy in his apartment. Today, Justice Kennedy, in his Windsor opinion, writes that DOMA’s burden “demeans” same-sex couples and “humiliates tens of thousands of children now being raised by same-sex couples.”
Put simply, it was almost unimaginable, when the gay rights movement took hold in the 1970s, or even as legal victories started to mount in the 1980s and 1990s, that the nation’s highest Court would find that a federal law unconstitutionally interfered with the “equal dignity of same-sex marriages.”
Yet reaching this conclusion was not a constitutional stretch. Relying on a forty-year old opinion striking down Congress’s discrimination against hippies (Department of Agriculture v. Moreno), the Court had little difficulty finding illegitimate stigma in DOMA’s “unusual deviation from the usual tradition” of the federal government accepting state definitions of marriage, as it struck down DOMA’s section 3, which prohibited the federal government from recognizing same-sex couples’ marriages.
Ironically, the very first time the Court recognized that this equality guarantee protected gay people came in 1996 (Romer v. Evans, which struck down Colorado’s antigay amendment) – the same year of DOMA’s passage. In essence, then, even when DOMA first arrived, the Court’s equality jurisprudence contained the seeds of its demise.