In its dual rulings on gay marriage Wednesday, the Supreme Court acted in a way that—in theory—should appeal to conservatives opposed to same-sex marriage as much as to liberals who championed it.
Justice Anthony Kennedy's decision in the Defense of Marriage Act case reads like a paean to conservative values, invoking totems such as states' rights, federalism, and freedom from the yoke of federal oversight, couched in language a tea partier would cherish.
Not that the 5-4 ruling is expected to win any converts, naturally. But that has always been what has made the statute that withheld federal benefits from married same-sex couples so problematic from the outset. It was a naked attempt by Congress to set social policy, the kind of thing that usually makes conservatives nervous (except when it doesn't, as with abortion).
But the court reached what can arguably be seen as a conservative result Wednesday, even though Kennedy's opinion was joined by the four liberals on the court. While striking down DOMA as a violation of constitutional guarantees of equal protection, the majority said it had no interest in extending the right of same-sex couples to marry to every state of the union. The opinion seems to go out of its way to demarcate the ruling from the momentum propelling the same-sex marriage movement.
Undoubtedly, that was the way to draw Kennedy on board in the first place. It was always his vote here that mattered most—although some thought Chief Justice John Roberts might be persuaded, as well. In oral arguments, Kennedy had the look of a justice groping for the most painless way to bail the court out of its predicament.
He found it. "The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens," he wrote. "Consistent with this allocation of authority, the Federal Government, through our history has deferred to state law policy decisions with respect to domestic relations," he added.
Then this: "Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways."
Change a few words around, and he could be an activist on the right lamenting President Obama's health care law.
In other words, the federal government had no business substituting its view of what constitutes a legal marriage for the judgment of an individual state. The majority went on to say that because Congress in passing DOMA injured the "very class" that states sought to protect, the statute doesn't pass constitutional muster.
At the same time, however, the ruling leaves other states free to deny same-sex couples the right to marry. That very point was seized upon by Roberts in a bit of a half-hearted 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."
The chief understood what Kennedy was up to. "I think the majority goes off course, as I have said," he wrote, "but I think it is undeniable that its judgment was based on federalism."
Oddly enough, Kennedy dissented from the decision to punt the case on California's Proposition 8. Roberts there led a five-justice mishmash of conservatives (Antonin Scalia) and liberals (Ruth Bader Ginsburg) to conclude that the court had no business taking up the case because the California supporters of the ballot measure had no legal standing to bring an appeal. The decision essentially lets stand a lower court ruling that invalidated the measure as unconstitutional, likely paving the way for same-sex marriages to resume in the state.
But nowhere else. And again, this is where Roberts emerged as an agent of containment. After making clear in the DOMA case that the ruling made same-sex marriages legal only in states that recognize it in the first place, here he was actively keeping a case from the court's consideration that may have forced the justices to grapple with whether there is some sort of constitutional right for gay couples to marry. It's a fair assumption to draw that Roberts, consistent with his fierce desire to protect the court's institutional interests, felt that he wanted to keep the day on as narrow footing as he could—which is a form of judicial, if not political, conservatism.
Indeed, a statement released by House Speaker John Boehner, who was the architect behind the House GOP's decision to bring a review of DOMA before the high court after the Obama administration chose to no longer defend it, seemed to ally Boehner with Roberts's view.
"While I am obviously disappointed in the ruling, it is always critical that we protect our system of checks and balances," Boehner said. "A robust national debate over marriage will continue in the public square, and it is my hope that states will define marriage as the union between one man and one woman."
This was not a universal belief, however. Scalia, as is his wont, savaged Kennedy's reasoning (and implicitly impugned Roberts's conclusions) in a blistering dissent in which he accused the majority, essentially, of hiding the ball. Calling the majority's analysis "legalistic argle-bargle" and "scattershot," the implacable conservative suggested that the opinion, because of a lack of clarity, will pave the way ultimately for states to invalidate same-sex marriage prohibitions on constitutional grounds. He attacked Kennedy's determination that Congress, in passing DOMA in 1996, acted with the purpose to "disparage and injure" same-sex couples and contended that language would be exploited by other judges to knock down barriers to marriage.
"By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition," Scalia wrote.
That remains to be seen. For now, things will progress as they have, likely with more and more states moving toward legalizing same-sex marriage rights, and ultimately perhaps putting more pressure on the court to revisit the subject a final time. Thomas Goldstein, the publisher of the widely read SCOTUSblog, said Wednesday that he expects further litigation in California over Proposition 8 and that the question whether the Constitution protects the right of gays and lesbians to marry could be back before the likes of Kennedy and Roberts in two or three years. Then, it's probable there will be no place left to hide.
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