Today’s simultaneous rulings on gay marriage are, unequivocally, huge wins for marriage equality. Hollingsworth v. Perry, which concluded that the appellants lacked standing to bring the case and that therefore neither the Supreme Court nor the 9th Circuit should have heard the appeals defending Proposition 8 in the first place, and United States v. Windsor, which concluded that the federal government cannot deny benefits related to marriage based on same-sex status, are watershed decisions in the history of LGBT equality.
That being said, some troubling questions certainly remain, from both cases. There’s a lot to absorb from these cases, and so I’m going to split the cases over two posts. Part 1 is going to be Windsor, and next time, we’ll cover Hollingsworth.
We’ll start with the big one, Windsor, which gutted the Defense of Marriage Act, essentially declaring that the federal government cannot deny federal marriage benefits based on sexual orientation. In the run-up to decision day, some authorities were comparing Windsor to the game-changing Brown v. Board of Education, which essentially abolished segregated schools nationwide (legally speaking; actual integration took several years longer). The great strength of Brown v. Board was its uncompromising federalism: it gave no quarter to that most celebrated euphemism for the right to discriminate, “state’s rights,” and so forced the country into a truly national step forward. No ambiguities, no ifs, no buts.
Likewise with other great progressive judicial triumphs like Roe v. Wade and Loving v. Virginia. The strength of those cases was not that they created new restrictions on the federal government. No, those cases have stood the test of time and been burned into the brains of Con Law students everywhere for decades because they recognized new fundamental rights in the people. Roe didn’t just say that there could be no federal ban on abortion, it said that no arm of the government could restrict the access of American women to abortions (on a trimester test that has since been expanded, but, lets not get ahead of ourselves). Loving didn’t end the federal government’s power to ban interracial marriage, it ended Virginia’s, and by extension, all other states. When it comes to protecting human rights, federalism is universally a better approach than the 10th Amendment fanaticism that has consumed American jurisprudence in the last ten years, and Windsor is a great example of that.
Windsor comes with substantially more qualifications than past great progressive triumphs. The first qualification is that no new gay marriages have been created or recognized by Windsor. On the absolute strictest possible reading of Windsor, one section of the Defense of Marriage Act, that part amending the so-called “Dictionary Act” which defines thousands of terms of federal law to specifically define “marriage” to exclude same-sex couples, is unconstitutional, but nothing else in this entire field is unconstitutional. The majority of states still have state Constitution bans on gay marriage and there is no language in Windsor specifically eliminates any of them.
In fact, there is troubling language in the majority opinion that seems to specifically create a right in individual states to continue to deny equality to same-sex couples. Quoting the majority:
The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.
I’ve bolded some of the sections that I find disturbing. It addresses itself entirely to a top-down attack on DOMA as discriminatory, not a bottom-up recognition of a fundamental right of gay Americans to get married. The decision seems to say that the federal government is prevented only from denying recognition to those marriages deemed legitimate by individual states, not that state bans on gay marriage are unconstitutional. This is a massive step back from the principles of federalism that ended segregation, that has kept church and state separate, that for the hundred and fifty years since the Fourteenth Amendment has put a bridle on that great engine of regression, “states’ rights.” This is a savagely curtailed version of rights jurisprudence, one which says that the federal government is the only kind of American institution that bears the burden of obeying the Constitution.
Windsor is a powerful referendum on the opponents of marriage equality, but it is just as much a referendum on progressive federalism. One might want to object that Windsor only speaks to DOMA and federal law because those were the only ones on the table, but progressive courts in the past haven’t been afraid to turn referendums on state issues into condemnations of those issues nationally – Roe, Loving, and Brown, even great cases from First Amendment religion jurisprudence from Abington Township to Lemon were all appeals from either state laws or state decisions that were instantly turned into national positions by the power of progressive federalism.
No state can deny your right to an abortion. No state can deny your right to an interracial marriage. No state can make you pray. But states can deny you the right to get married – and this court doesn’t say how far the state’s power to restrict that right goes. That is because progressive, federalist courts in the past have had the courage and wisdom to expand the Constitution’s guarantees as soon as the opportunity arises, not waiting for narrow procedural grounds in future cases (and believe me, there will be future cases) to give them the opportunity.
The decision here is so narrow that it even permits states that do not extend the courtesy of common humanity to same-sex couples to deny the existence of other states’ marriages. This radically contradicts the mainstream interpretation of Full Faith and Credit, creating a vicious internal inconsistency in the ruling itself. States are supposed to give full faith and credit to the judicial proceedings of every other state. According to Windsor, marriages, as adjudicated by the states, control over the federal government’s desire to deny federal marriage benefits to same-sex couples because marriage is something like a fundamental right. And yet, also according to this ruling, states do not have to give full faith and credit to the judicial proceedings of every other state where marriage is concerned. If I get divorced in New York and flee to Florida, is Florida likewise free to deny the judicial validity of my divorce? If not, why not?
This case is a huge symbolic win, but leaves a lot to be desired. Every state gay marriage ban that was on the books last week is still on the books. A win on the federal level is, don’t get me wrong, a tremendous win – and a contrary ruling would have been an absolute disaster for LGBT equality. But the ruling could have gone so much further, and still leaves the court dragging out the issue until a real challenge to a state ban on gay marriage comes before it. Windsor is a call to action for LGBT equality, to take the fight to state houses everywhere, or to Congress and the Senate, to work new cases challenging state gay marriage bans up the court system – because, unfortunately, it far from ends the battle.
Unfortunately, Hollinsworth v. Perry, the California Prop 8 appeal, is not that case. But next time, I’ll go through that case in greater detail, and why I find it, too, to have some glaring flaws that should leave all progressives troubled at the direction the court has gone lately.