As many of us predicted, Justice Anthony Kennedy supplied the fifth vote today to strike down the Defense of Marriage Act (DOMA). I just returned from offering legal analysis in front of the Supreme Court (and roasting in the DC summer weather with CNN). I will be discussing the case tonight with BBC. The surprise was not in the outcome or the split but the scope of the decision. Kennedy could have rendered the same decision on a narrower basis but chose to render a more expansive endorsement of the constitutional protections for gay couples. These are marriages, plain and simple, and cannot be simply discharged by Congress. Kennedy wrote: “DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty.”
As I discussed on CNN, I was most struck by the more small minority of justices on the Court that view such laws as justified on morality grounds. That view is now argued almost exclusively by Justice Scalia and Justice Thomas.
Kennedy’s decision is a sweeping victory for the equal protection of couples regardless of gender. He writes:
By creating two contradictory marriage regimes within the same State, DOMAforces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of statesanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriagesare unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the Statehas sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
Scalia was equally passionate. Indeed, when Jake Tapper noted on the air with me that he hasn’t seen a dissenting opinion with this type of heated language, I almost added “since the last Scalia dissent.” Scalia was at his signature best of venting his anger:
That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congressand the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every- where “primary” in its role.
The Proposition 8 decision was a win by default for the couples on standing grounds. However, it effectively kills everything on the docket after the district court order. That leaves the state open again for gay marriages.
Here is the decision in Windsor: 12-307_g2bh
Here is the decision in Hollingsworth: 12-144_8ok0