Private: Split Supreme Court Strikes DOMA but Still Steers Course to the Right

by Jeremy Leaming

A majority of the U.S. Supreme Court found a way to come together to advance equality. It comes on the ten-year anniversary of the high court’s landmark Lawrence v. Texas decision that invalidated state anti-sodomy laws targeting gay people. 

In U.S. v. Windsor, the majority led by Justice Anthony Kennedy and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, concluded that the federal government’s refusal to recognize legally married same-sex couples is unconstitutional.

In a 5-4 opinion in Hollingsworth v. Perry, the court dismissed on procedural grounds the challenge to court rulings that invalidated California's Proposition 8, meaning that couples in the Golden State can resume obtaining marriage licenses. The high court majority in Perry was made up of Chief Justice John Roberts Jr. and Justices Ginsburg, Breyer, Antonin Scalia and Kagan. The majority found that the supporters of Proposition 8, which yanked the right to marry from same-sex couples in California, did not have standing to challenge the law. As David Savage reports for the Los Angeles Times, state officials won’t defend the law, which they view as a violation of equal protection, so it essentially clears “the way … for same-sex marriages to resume in California.”

But both actions, however, follow the conservative majority’s decision to gut the Voting Rights Act, and a ruling potentially limiting the use of race-conscious admissions policies in higher education. Moreover, the high court also issued opinions this week making it significantly more difficult for workers to sue employers over harassment allegations. So while today’s demise of DOMA is certainly news worthy of great celebration, it hardly changes the fact that the Roberts Court is bent on advancing a right-wing, pro-corporate agenda.

In the DOMA case the majority did not find that there is constitutional right to same-sex marriage. The majority opinion was narrow, striking a provision of DOMA that it saw as infringing on due process and equality promises of the federal government. Noting the states’ historic and “significant responsibilities” for defining marriage, Kennedy said DOMA “departs” from the tradition with its sweeping scope. Citing Romer v. Evans, Kennedy wrote that discriminations “‘of an usual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’”  In this instance DOMA did not survive that type of scrutiny.

In this instance DOMA was denying the dignity of a same-sex marriage that had been recognized by the state of New York. The opinion authored by Kennedy included lofty language of the Fifth Amendment’s due process clause and DOMA’s purpose to deprive an “unpopular group” of liberty. Not surprisingly Kennedy’s opinion provoked a sharp dissent from Justice Scalia, who joined yesterday’s majority opinion usurping Congress’ constitutional authority to enforce the promises of the 14th and 15th Amendments through “appropriate legislation.”

“DOMA seeks to injure the very class New York seeks to protect,” Kennedy wrote. “By doing so it violates basic due process and equal protection principles applicable to the Federal Government.” Citing precedent, he continued, that the “Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”

Kennedy continued, “DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”

The history of DOMA’s enactment and even the defense of it, Kennedy wrote, revealed it as a heavy-handed measure to stigmatize and place at a disadvantage same-sex couples.

“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. This raises a most serious question under the Constitution’s Fifth Amendment.”

Kennedy ticked off numerous ways that DOMA places legally married same-sex couples at a disadvantage. First the law essentially says to those legally married couples, the federal government does not see you as married and therefore the thousands of federal benefits that straight couples receive are not available to you. Some of those benefits include health care coverage, protections in the Bankruptcy Code, and being buried together in veterans’ cemeteries. Kennedy noted DOMA also “brings financial harm to children of same-sex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses. And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security.”

In conclusion, “The power the Constitution grants it also restrains,” Kennedy wrote. “And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.

“The liberty protected by the Fifth Amendment’s Due Process Clause,” Kennedy continued, “contains within it the protection against denying to any person the equal protection of the laws.”

Reaction to today’s opinion celebrated victory for marriage equality, but much of it also noted the major setbacks to equality the Roberts Court has provided this term, especially in Shelby County v. Holder.

Alliance for Justice President Nan Aron said, while we “celebrate today’s victories, we are appalled, but not surprised that the Court in Shelby County v. Holder has cut the heart out of the Voting Rights Act, one of America’s most important civil rights statutes. This week, the Court majority willfully turned its back on the hard-won promise of equality, based on the delusion that the quest for racial equality is over.”

ACS President Caroline Fredrickson also hailed today’s opinion, noting there “is much to celebrate for lesbians and gay men who for far too long have been treated as second-class citizens by their federal government and saw their right to marry yanked by Proposition 8.”

“But let us not forget,” Fredrickson continued, “that these rulings come on the heels of the Court's decisions to misread the Constitution and gut the Voting Rights Act, limit the use of affirmative action in education, make it harder for workers to bring lawsuits over harassment and help big businesses avoid myriad regulations. So while we laud the advancement of equality for lesbians and gay men, we must recognize that the Roberts Court remains a deeply conservative Court that shows a brash flair for misconstruing constitutional precepts to reach ends that advance its far right and pro-corporate agenda.”

[image via Amelia VanderLaan]

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