Is Gay Marriage Unstoppable?

The cascade of same-sex marriage rulings is now a torrent, each more quotable and image-ready than the last. “Let us look less to the sky to see what might fall; rather, let us look to each other…and rise,” district Judge Michael McShane wrote Monday in Oregon. Not to be outdone, district Judge John E. Jones III—a George W. Bush appointee, personally recommended by Rick Santorum—wrote Tuesday in Pennsylvania: “We are a better people than what these [marriage] laws represent, and it is time to discard them into the ash heap of history.”

Indeed, after Judge Jones threw out his state’s ban, same-sex marriage is now 12-0 in federal courts across the country. But the lofty rhetoric of these decisions and their legal reasoning are a far cry from Justice Anthony Kennedy’s opinion in United States v. Windsor, which invalidated the Defense of Marriage Act less than a year ago. As a challenge to a state marriage amendment or law now seems destined to end up at the Supreme Court, probably in the next term, these discrepancies should be cause for concern.

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Unlike the recent decisions, Justice Kennedy’s Windsor opinion was a narrowly tailored document with a two-part logic. First he observed that marriage is a matter for the states, some of which had extended it to include same-sex couples. Second he wrote, “interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.”

I’ve italicized that phrase for a reason. Notice that Justice Kennedy did not say same-sex marriage is a fundamental right or that DOMA violated the equal protection clause on its own terms. Rather, the state of New York had conferred the “dignity” of marriage on its gay and lesbian couples—and Congress had taken it away. Concluding that DOMA violated the Fifth Amendment’s due process clause, the Windsor opinion held that “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

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That is a jurisprudentially conservative opinion, even if it led to a socially liberal result. Congress cannot treat unequally those whom a state has chosen to treat equally. Most of the last year’s marriage opinions have been far broader.

In the Pennsylvania case, Whitewood v. Wolf, Judge Jones held that the due process clause confers a fundamental right to marry and, crucially, that that right is “personal to the individual.” In other words, the state can’t tell you whom you can marry. (Interestingly, Judge Jones did not distinguish same-sex marriage from, say, marriage between relatives, though of course it is easy to do so.)

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That is much more than what Windsor held. Indeed, in some ways, Judge Jones’s ruling is the opposite. Windsor held that states can decide which marriages are valid. Whitewood holds that they can’t.

And if that’s not enough, Judge Jones adds a second rationale: that the marriage law also violates the equal protection rights of gays and lesbians. Here, he enters into a legal quagmire that Justice Kennedy studiously avoided, finding that cases affecting gays require “intermediate scrutiny” rather than ordinary review. Setting aside the legal doctrine, what this standard means is that sustaining an anti-gay law will be very difficult. And indeed, Judge Jones dispatches Pennsylvania’s in just a few sentences.

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Monday’s decision in Oregon was more modest, but still well beyond the bounds of Windsor. Like Judge Jones, Judge McShane held that the equal protection rights of gays and lesbians were implicated by Oregon’s marriage laws. He declined, however, to apply a higher standard of review, finding instead that there was no rational basis for the laws at all. Traditional morals are an insufficient basis for a ban on civil marriage, the welfare of children indeed is enhanced by same-sex marriage, and thus the laws have no permissible basis to violate equal protection and are unconstitutional.

Justice Kennedy made none of those points in Windsor. He did make an equal protection argument, but it was much thinner—and reminiscent of his earlier opinion in Romer v. Evans, which struck down Colorado’s anti-gay rights amendment: The problem with DOMA is that it was motivated by animus against gays. Congress set out to discriminate against gay people, and therefore DOMA violates the equal protection guarantees of the U.S. Constitution.

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By finding anti-gay animus on the part of DOMA’s congressional backers, Justice Kennedy skirted the entire issue of the standard of review, as well as what justifications the law might have. Yes, he made general points about equality as it pertains to marriage, stating at one point that “when New York adopted a law to permit same-sex marriage, it sought to eliminate inequality.” But the holding of the case was based on the narrow grounds that Congress set out to harm people a state had chosen to protect.

So what will happen next?

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The court’s makeup has not changed since Windsor. As in many cases recently, the four conservative justices—Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito—can be expected to rule against LGBT people. The four liberal justices—Ruth Bader Ginsberg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor—will likely rule for them. That again leaves Justice Kennedy as the swing vote.

On the one hand, Justice Kennedy is a judicial conservative for whom voiding two dozen state constitutional amendments would be an unprecedented act. He deliberately wrote a narrow opinion in Windsor and avoided the rhetorical flourishes that appear in so many of the subsequent state cases. Will he really go the distance and take Windsor to a logical, but not inevitable, extreme?

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On balance, I think he will. And the reason for that is more fundamental, more existential even, than all the legal doctrines we’ve discussed so far. Nearly 20 years ago, in Romer, Justice Kennedy held for the first time in Supreme Court history that gay people exist.

That may seem like a trivial point, but it is not universally agreed on. Justice Scalia’s furious dissents in Romer, Lawrence, and Windsor all insist that people have no right to “homosexual sodomy.” To Justice Scalia, homosexuality is something you do, not something you are. There are no gay people in Justice Scalia’s world; only gay acts, which the state can regulate at will.

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Beginning in 1996, Justice Kennedy took a different view: that gay people exist and that gays are a group. They are a class of people, and discriminating against them is not a neutral regulation of behavior but discrimination against a group. That’s why DOMA was all about animus—because it singled out gays as a class of people and discriminated against them.

Put another way, in Justice Scalia’s world, people get gay-married. In Justice Kennedy’s, gay (and straight) people get married. The distinction is subtle but makes a tremendous difference.

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Every post-Windsor marriage court has held the same way. Once gay people exist, and gays exist as a class, prohibiting same-sex marriage is less about regulating something we all might be interested in and more about restricting the rights of a particular subset of people.

That is the real effect of Windsor: not its holding on the unconstitutionality of DOMA but its conclusive statement that gays are real. That’s why court after court has found anti-gay marriage laws to be unconstitutional, and it’s why Justice Kennedy will a year from now. It’s no coincidence that the Oregon and Pennsylvania opinions both began with the stirring stories of the plaintiffs, long term gay couples denied the right to marry. On the surface, those stories are extraneous detail. But on close inspection, they are why the marriage tide won’t be turned.

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