“It’s over,” declare David S. Cohen and Dahlia Lithwick at Slate. Cohen and Lithwick have boldly claimed that same-sex marriage can no longer lose in courts. The Slate article points to eighteen cases involving same-sex issues that have been decided since SCOTUS’s Windsor decision last June, which struck down part of DOMA. Same-sex marriage supporters have prevailed in all eighteen of these cases (twelve of which involved marriage rights and the other six involved other rights related to same-sex couples). And you can add one more to the list. Since the Slate article was posted, a federal judge struck down Texas’s ban on same-sex marriage. The Slate articles goes on, pointing to the trend of government officials refusing to defend same-sex marriage bans in court (as happened in New Jersey and Nevada).
The trend of legal success by same-sex rights advocates is certainly remarkable. But it is far too early to declare the fight over. For starters, few appellate courts have issued post-Windsor same-sex rights decisions yet. A same-sex rights win in district court is much less significant than any win at the appellate level. Plaintiffs (usually same-sex rights proponents) usually have an ability to seek out sympathetic judges at the district court level, but that ability largely disappears at the appellate level.
Moreover, very little that happens at the district and even the circuit court levels will affect the ultimate decision by the Supreme Court, which (almost certainly) lies in the hands of Justice Kennedy. Although Justice Scalia’s characterization of Justice Kennedy’s Windsor opinion suggests that it is inevitable that Kennedy will go on to hold that there is a national constitutional right to same-sex marriage, Scalia’s dissent also suggests that it is inevitable that the world is coming to an end as a result of Kennedy’s Windsor opinion.
Cohen and Lithwick’s Slate article is just one example of a strong trend among journalists and judges alike in using the Windsor opinion to conclude that state same-sex marriage bans are unconstitutional. But this reaction is seriously premature. In reality, there is little in the text of Justice Kennedy’s Windsor opinion that supports a conclusion that he will inevitably vote in support of a constitutional right to same-sex marriage.
Kennedy used a two-prong approach to arrive at his conclusion in Windsor. The Slate article describes this approach: “The first part [of Kennedy’s opinion] is all about federalism, not equality. Kennedy painstakingly explained that the federal Defense of Marriage Act offended basic principles of states’ rights because, historically, the states have always defined marriage and the federal government just goes along for the ride. … Justice Kennedy could have stopped there, but he didn’t.”
Could Justice Kennedy have stopped there? That’s not so clear. The opinion Justice Kennedy wrote controlled the outcome of the case because a majority of the Court was willing to sign it. If Kennedy had written an opinion striking down part of DOMA based on states’ rights alone, who would have signed it? The Justices who joined Kennedy to create a majority in Windsor were the four “liberal” Justices, who are not generally considered to be huge advocates of states’ rights. Those Justices probably would have wanted to write a separate opinion focusing on DOMA’s deprivation of dignity to same-sex couples. Meanwhile, the four “conservative” Justices didn’t want to strike down DOMA at all. Although those Justices may generally believe in states’ rights, they believed those rights were insufficient to strike down DOMA in this case.
In other words, instead of commanding a majority of five Justices, a Kennedy opinion based only on principles of federalism probably wouldn’t have garnered the support of a single other Justice. That opinion would still have controlled the result in Windsor, as five Justices would have nonetheless voted to strike down part of DOMA. But Kennedy’s reasoning based on states’ rights would have been weakened.
It is well established that Kennedy is a big believer in states’ rights. Throughout his career, he has advocated for strengthening principles of federalism. He wrote Windsor the way he did in order to get a majority of the Court to support his federalism-based opinion.
Why is this important? Because when SCOTUS eventually considers whether there is a national constitutional right to same-sex marriage, the states’ rights issue cuts in the opposite direction. So, if Kennedy’s Windsor opinion was primarily based on states’ rights, he might focus on states’ rights again when faced with the constitutionality of a state ban on same-sex marriage, concluding that federal courts would trample on states’ rights by forcing all states to allow same-sex marriage. On the other hand, if Kennedy’s Windsor opinion was primarily about the dignity of same-sex relationships, that would suggest that the dignity of those relationships will remain paramount in Kennedy’s mind when confronted with a state ban on same-sex marriage.
Now, Kennedy’s Windsor opinion includes many examples of soaring rhetoric about the dignity of same-sex relationships. Judges and commentators love to cite to these quotes when interpreting the Windsor opinion as a clear signal that SCOTUS will find a national constitutional right to same-sex marriage. But it is difficult to find a single quote in Kennedy’s Windsor opinion about the dignity of same-sex relationships that is not closely tied to a reference to the fact that the relationships at issue are state-sanctioned relationships. Here are some examples:
“DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” (pp. 20-21)
“[I]nterference 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.” (p. 21)
“By this dynamic DOMA undermines both the public and private significance of state-sanctioned 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, see Lawrence, 539 U.S. 558, 123 S.Ct. 2472, 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.” (pp. 22-23)
“It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper.” (p.25)
“The federal statute is invalid, for 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.” (pp. 25-26)
Commentators love extracting quotes about the dignity of same-sex relationships from Kennedy’s Windsor opinion. But show me one of those quotes, and I’ll show you a closely-related reference to states’ rights. Meanwhile, there are plenty of references in Windsor to states’ rights that are unrelated to LGBTQ issues. And there are actually some favorable references to the traditional definition of marriage as well.
So, I’m not buying the inevitability narrative advanced in the Slate article. The text of Windsor simply does not support that narrative, no matter how many quotes commentators (or Justice Scalia) pull out of context and extrapolate from.
And let’s not forget about the Perry case, decided on the same day as Windsor. That was SCOTUS’s opportunity to hold that there is a constitutional right to same-sex marriage in all 50 states, but instead, the Court held that it lacked jurisdiction to decide the case. Interestingly, Kennedy voted in favor of jurisdiction, along with conservative Justices Thomas and Alito, while liberal Justices Ginsburg, Breyer and Kagan voted against jurisdiction.
I have to imagine that Thomas, Alito, Ginsburg, Breyer and Kagan had a decent sense of what Kennedy would have decided if the Court had decided Perry on the merits. And the jurisdiction issue was a 5-4 decision. So, if any one of the three liberal Justices who voted against jurisdiction had voted in favor of it, the case would have been decided on the merits. Is it possible that Ginsburg, Breyer and Kagan each could have single-handedly created a national constitutional right to same-sex marriage and declined that opportunity? That’s kind of hard to believe.
The votes on jurisdiction suggest that conservative Justices Thomas and Alito were the ones who wanted the case to be decided on the merits. But if that’s true, they probably thought that Justice Kennedy would have issued a conservative opinion, allowing states to continue using laws defining marriage as between one man and one woman.
At the end of the day, neither the language of the Windsor opinion itself, nor the circumstances surrounding it support a conclusion that SCOTUS will inevitably find a national constitutional right to same-sex marriage. In fact, the evidence we have available to us better supports the opposite conclusion. Few know what Justice Kennedy really thinks about the issue, but to declare the battle over is wildly premature.
[Update: The original version of this post claimed that no appellate courts have issued post-Windsor decisions about LGBTQ rights. But as David Cohen pointed out, the Ninth Circuit ruled in January that based on Windsor, people could not be excluded from juries due to sexual orientation. The error has been corrected.]