First Takes on DOMA and Prop 8 Rulings

By Mike Dorf

I've now read the majority opinion in Windsor (striking down DOMA) and enough of Perry (dismissing the Prop 8 challenge for lack of appellate standing) to formulate a few instant reactions on a number of points:

1) If Bill Clinton was "the first Black president," Anthony Kennedy has now firmly secured his place in history as "the first gay Justice."  As the author of Romer v. Evans, Lawrence v. Texas and now United States v. Windsor, Justice Kennedy makes clear that he not only accepts, but welcomes the task of writing majestic opinions affirming the dignity of gay persons and couples.  He remains fundamentally conservative on matters of federalism and his notions of equality when it comes to race are tightly formalistic, but his legacy is now secure.  A hundred years from now, histories of the Court will treat Justice Kennedy w/r/t gay rights the way we think of Earl Warren w/r/t racial equality.

2) There will be a vigorous debate now about the implications of Windsor for challenges to state laws that deny SSM.  CJ Roberts says the following in his Windsor dissent:

The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their “historic and essential authority to define the marital relation,” may continue to utilize the traditional definition of marriage.

That strikes me as technically correct but wrong on the big picture.  Justice Kennedy's opinion in Windsor is chock full of language that, if taken seriously, would surely invalidate state bans on SSM.  Here is what I consider the money quote from the majority:

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 marriages are 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, and whose relationship the State has 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.  Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive. 

Yes, that quote and the rest of the opinion say that state recognition is important but I find it hard to believe that any of the five Justices who signed onto it would sustain state prohibitions of SSM if they had to decide that question.  Rather, it seems clear to me that for prudential reasons, the majority wrote the opinion in such a way as to put off the decision of whether there is a right to SSM for at least several years, thus allowing the political process to continue to unfold.

3) To my mind, the real mystery is the lineup in Perry, which does not correspond to the Justices' views on the merits.  CJ Roberts writes for a majority that includes himself and Justices Scalia, Ginsburg, Breyer and Kagan.  There are two possibilities here.  One is that the Justices made radically different calculations about what would happen if they reached the merits.  The other is--amazingly!--that they had honest, non-ideological differences about the standing issue.  (More about that tomorrow.)