U.Va. Law Professors Dissect Supreme Court’s Same-Sex Marriage Rulings

The U.S. Supreme Court on Wednesday struck down the Defense of Marriage Act – which denied federal benefits to legally married same-sex couples – and cleared the way for California to allow same-sex marriage.

In United States v. Windsor, the justices ruled 5-4 that the 1996 Defense of Marriage Act is “unconstitutional as deprivation of the equal liberty of persons that is protected by the Fifth Amendment,” according to the majority opinion, written by Justice Anthony Kennedy.

And in Hollingsworth v. Perry, the court dismissed an appeal to uphold California’s same-sex marriage ban known as Proposition 8, but opted not to rule on the constitutionality of same-sex marriage.

University of Virginia School of Law professors Kerry Abrams, Kim Forde-Mazrui, Deborah Hellman, A.E. Dick Howard and Richard Schragger weighed in on the ruling

• Kerry Abrams

Abrams’ areas of expertise include constitutional law, legal history and family law, and she has written a number of articles, including on the marriage equality movement.

“There will no doubt be much celebration today over the court’s decisions in Windsor and Perry. But the court’s decisions still leave much for lawyers and judges to do. The conventional wisdom seems to be that the ‘no standing’ holding in Perry is good for same-sex couples because it leaves in place the district court’s ruling that Prop. 8 is unconstitutional; indeed, Gov. Brown just issued a statement that the district court’s injunction of Prop. 8 now applies statewide in California. But there are several ways in which the district court opinion could turn out to be more vulnerable than it first appears. The 9th Circuit might disagree with Gov. Brown and refuse to lift the stay on the district court’s injunction. Or a county clerk might refuse to marry a same-sex couple, generating a new lawsuit before a different district court judge, and a different judge might decide the case differently than Judge Walker did. Or, the 9th Circuit could decide another marriage equality case – such as the one currently pending in Nevada – in a way that indirectly overrules Judge Walker’s Perry decision. In any case, it seems likely that this is just the beginning of the U.S. Supreme Court’s engagement with marriage equality.

“With that in mind, it’s worth thinking about the test that Justice Kennedy applied in Windsor and consider how it might play out in future marriage equality cases. DOMA, according to Justice Kennedy, is unconstitutional because ‘a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group.’ How do we know that was Congress’ desire? Because of ‘DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage.’ When the government engages in ‘discriminations of an unusual character,’ the court must apply ‘careful consideration.’ This seems to be a clarification of the ‘rational basis with bite’ analysis that Kennedy applied in Romer v. Evans and Lawrence v. Texas. It’s too early to know whether a new ‘careful consideration’ standard will develop, but this could be a step in that direction. It certainly continues the trend of striking down discriminatory legislation using rational basis review, which allows courts to avoid questions such as whether sexual orientation is a suspect class, whether same-sex marriage bans are a form of gender discrimination or whether marriage is a ‘fundamental right.’ If marriage equality comes before the court again while Justice Kennedy is on the bench, I’m betting that the analysis will be ‘careful consideration’ rational basis review.”
 
 

• Kim Forde-Mazrui

Forde-Mazrui’s scholarship focuses on equal protection, particularly involving race and sexual orientation, and he has written articles on same-sex marriage.

“The movement in favor of same-sex marriage received a major boost today. In United States v. Windsor, the court invalidated the federal Defense of Marriage Act (DOMA), thereby entitling same-sex marriages recognized under state law to be recognized as marriages under federal law, including for a wide range of rights and responsibilities. Although the case only involved federal law, its reasoning strongly implies that state law bans on same-sex marriage are constitutionally vulnerable. The court reasoned that, by refusing to recognize same-sex marriages, the purpose and effect of DOMA was to ‘demean,’ ‘degrade,’ ‘disparage,’ deem ‘unworthy’ and deny the ‘equal dignity’ of same-sex marriages. That reasoning would seem to apply with comparable force to state laws that refuse to recognize same-sex marriage, especially those enacted in recent decades with the specific purpose of preventing same-sex marriage. Marriage equality advocates will no doubt rely on Windsor in challenging bans on same-sex marriage, and lower courts, reading Windsor, will likely rule in their favor.”

• Deborah Hellman

Hellman is an expert in constitutional law, particularly discrimination and equal protection.

“In United States v. Windsor, the Supreme Court today struck down a section of the Defense of Marriage Act (DOMA), over vigorous objections that the court lacked standing to hear the case. In an opinion written by Justice Kennedy, the court finds that the law violates the due process clause of the Fifth Amendment, which has long been understood to include an equal protection component. The important question is, why?

 “As I read the case, the section of DOMA that defines marriage for the purpose of federal law violates the Constitution because it demeans the dignity of same-sex couples and their marriages. Kennedy uses the word dignity (or indignity) a total of 10 times in his fairly short opinion – signaling the importance of an interest that he used to invalidate a Texas law criminalizing non-coital sex in Lawrence v. Texas. DOMA demeans the dignity of same-sex couples because it takes from them the status and respect that their own states have conferred upon them in recognizing their marriages. Going forward, one might wonder what this opinion augurs for the constitutionality of state laws restricting marriage to opposite-sex couples. As Hollingsworth v. Perry was dismissed today on standing grounds, this remains an open question.

“The chief justice, in an opinion dissenting in Windsor, claims that the majority’s opinion rests on federalism, and thus that it should lend support to the view that state laws limiting marriage to opposite couples are constitutional. In this reading, I believe he is mistaken. While the majority in Windsor does spend considerable time discussing the fact that federal intrusions into definitions of marriage are unusual, this discussion is not made in support of a federalism rationale. Rather, Justice Kennedy argues that ‘DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage … is strong evidence of a law having the purpose and effect of disapproval of [same-sex couples].’ In other words, DOMA expresses that gay couples are second-class citizens. How do we know that DOMA stamps these couples as inferior? In part, argues Justice Kennedy, because the federal government has gone out of its way to intervene in an area normally left to states. To return to the question of what Windsor thus portends for the constitutionality of state laws that restrict marriage to opposite-sex couples: If what matters is whether a law expresses that same-sex couples are inferior – which is the rationale that the Kennedy opinion relies upon – it seems to me an easy case to conclude that state laws limiting marriage to opposite-sex couples will also be found unconstitutional.”

• A.E. Dick Howard

Howard is an expert on constitutional law and the Supreme Court.

“On jurisdiction, it’s interesting that the court decided to reach the merits. If the justices had wanted to duck this case, they could have ruled that the members of Congress who filed the amicus brief lacked standing. But they weren’t willing to treat members of Congress as being like members of the public in the Proposition 8 case. And the justices were impressed by Walter Dellinger’s amicus brief (reflecting his standing as a seasoned Supreme Court practitioner).

“The key to understanding United States v. Windsor is to realize that it rests on twin pillars – federalism and equal protection. Neither, by itself, in my judgment, is sufficient to explain the result. The federalism aspect is found in Justice Kennedy’s strong statement that marriage is, by tradition, virtually the exclusive domain of the state. In this respect, today’s opinion parallels yesterday’s Voting Rights Act decision (read more here). In both cases, the court’s majority showed a deep concern to protect the states from federal overreaching.

“The other pillar is Kennedy’s equal protection reasoning. Kennedy looks at DOMA’s purpose and effect. He finds that DOMA has the purpose and effect of imposing a disadvantage and stigma on a class of people recognized and protected by state law. In finding DOMA unconstitutional, Kennedy takes into account the animus against same-sex marriage reflected in DOMA’s enactment. Congress’ purpose is clear and evident. The effort to disadvantage a particular class is not simply an incident of the law’s passage. Kennedy is quite pointed in saying that DOMA writes inequality into the U.S. Code.


“The court’s decision does not directly affect Virginia law. Since the decision’s premise is that states have the traditional prerogative of defining marriage, it does not say that states are obliged to recognize same-sex marriage. The decision’s federalism reasoning implies that states are free to decide whether to recognize same-sex marriage or not.

“What of future cases? Might proponents of same-sex marriage argue that the logic of Kennedy’s equal protection language supports the argument that state bans on same-sex marriage deny a class of citizens the equal protection of the law? One can easily imagine Kennedy’s language about animus and discrimination being the platform for arguments aimed at state laws. But it is important to say that, whatever the merits of those arguments, today’s opinion does not go that far. The equal protection portion of Kennedy’s opinion could, in the hands of a litigant, be enlarged to attack state laws. But today’s opinion links the equal protection analysis to the deference to state competence to define marriage – the twin pillars to which I referred above.

“Further, there may be a difference between attacks on state laws that ban same-sex marriage and those that simply don’t include that relation in the state’s definition of marriage. The former might be thought to come a step closer to a finding of animus of the kind Kennedy found in the passage of DOMA.

“Proponents of same-sex marriage have much to celebrate in both of today’s opinions – the DOMA case and the Proposition 8 case. The former is far more important in its reach and practical effect. But United States v. Windsor is not Roe v. Wade. That is, where the court in Roe recognized constitutional protection for a woman’s right to make and effectuate an abortion decision, the court in Windsor leaves the battle over constitutional protection for same-sex marriage to be fought another day.”

• Richard Schragger

Schragger is an expert on constitutional law and law and religion, and has written articles about same-sex marriage.

“In striking down the Defense of Marriage Act, the court held that the statute’s ‘principal effect is to identify a subset of state-sanctioned marriages and make them unequal.’ Justice Kennedy’s opinion for the majority argues that DOMA creates ‘second-class marriages,’ that it ‘demeans’ same-sex couples, ‘humiliates’ their children, and ‘tells those couples and all the world, that their otherwise valid marriages are unworthy of federal recognition.’ This is strong language, and indicates that Justice Kennedy may have been willing to strike down same-sex marriage bans throughout the country. Nevertheless, the court avoided that outcome.

“Despite Kennedy’s willingness to reach the merits of the California Proposition 8 case, which could have decided the ultimate issue of the constitutionality of same-sex marriage bans in all states, five justices declined to do so, joining a majority in holding that the petitioners in that case did not have standing. This leaves untouched for today, same-sex marriage bans in other states aside from California. And it means that though this is a giant step in the direction of true equality for same-sex couples, it is not the last step. Marriage is still denied to same-sex couples in the majority of states.”