Two Cheers for the Supreme Court on LGBT Rights

Today, the Supreme Court finally issued two long-awaited major opinions on gay and lesbian rights. One of them was a historic opinion and a major victory for civil rights. The other stopped short of what could have been, but will at least result in same-sex marriage being legal in the nation's biggest state.

The first of today's rulings, United States v. Windsor, concerned the constitutionality of Section 3 of the infamous Defense of Marriage Act (DOMA), which defined marriage for the purposes of federal law as being only between a man and a woman. Edith Windsor was inelgible to receive a spousal benefit on her federal estate taxes because her marriage to another women was not recognized by federal law. According to the Court's 5-4 majority opinion—authored by Anthony Kennedy and joined by the Court's four Democratic nominees—Section 3 is unconstitutional. "DOMA seeks to injure the very class New York seeks to protect," Kennedy argues. "By doing so it violates basic due process and equal protection principles applicable to the Federal Government."

Somewhat oddly, Kennedy's opinion said very little else about the equal protection standards that should apply going forward. In equal protection law, state classifications are evaluated under three levels of scrutiny. Most state classifications, including ecomomic regulations, are subject to only "rational basis" review—that is, the classification need only have a rational relationship to a legitimate state interest, a test that is almost always passed. Racial classifications, conversely, are subject to "strict scrutiny"—they must be narrowly taiolred to a compelling state interest, a test that the state will almost always fail. Gender classifications are subject to an intermediate level of scutiny in which there is a burden of proof agaist the state but not on the same level as racial classifications.

Based on its majority opinion in Windsor, the Court ultimately seems to be still applying merely "rational basis" scrutiny rather than "heightened" scrutiny to classifications based on sexual orientation. Kennedy cited his own rational basis justification for striking down an anti-LBGT Colorado ordinance. But when it comes to sexual orientation determining the standard of review it gets a little more complicated. In practice, Kennedy's standard seems to be "rational basis with teeth" as opposed to the less stringent rational basis review that applies to economic regulations. Repeating his earlier formulation, Kennedy argued that "‘[d]iscriminations of an unusual character especially require careful consideration." "Careful consideration" is something more than rational basis but something less than heightened scrutiny. This is relevant going forward because state bans on same-sex marriage almost certainly cannot survive heightened scrutiny but might survive rational basis review, so it's not clear what the DOMA decision means for same-sex marriage bans at the state level. We will return to this issue shortly.

As applied to DOMA, the majority found that rational basis was sufficient to hold the Section 3 unconstitutional for placing an irrational stigma on a class of people based on their sexual orientation. Particularly important to Kennedy, as he suggested at oral argument, was the status of children. DOMA, argues the majority, "humiliates tens of thousands of children now being raised by same-sex couples." As such, Windsor is a major advance, recognizing the inherent dignity of same-sex marriages and giving same-sex spouses equal access to the privileges of marriage under federal law.

There were three dissenting opinions in the case, a short one by Chief Justice Roberts and lengthier ones by Scalia and Alito. All four dissenters believed that the case should have been rejected on standing grounds and that DOMA was constitutional on the merits. On the standing issue, the dissenters argued that since Windsor won her appeal at the circuit court level and the current administration no longer defends the constitutionality of DOMA, there was no controversy for the courts to resolve. The majority argued, correctly in my view, that since the law was still being enforced, there was an ongoing case for the courts to adjudicate and it was appropriate for a group representing the House of Representatives to defend the law.

The arguments made by Alito and Scalia in dissent on the merits are highly unconvincing, although Scalia does make some good points about the lack of clarity in Kennedy's equal protection holding. The calls by the dissenters to defer to the will of the people are—24 hours after the same justices voted to eviscerate major civil rights legislation that was clearly authorized by the text of the Constitution—simply intolerable. (Note that in Windsor, the majority was actually able to identify the constitutional provision that the statute violated, something that Roberts's opinion gutting the Voting Rights Act manifestly failed to do.) To read Scalia ranting about "black-robed supremacy" the day after the Court struck down a key provision of the Voting Rights Act based on a theory of "equal state sovereignty" that both has no basis whatsover in the Constitution and, based on the Windsor dissents, had a shelf-life of about 24 hours (DOMA certainly affects states much differently based on the legal status of same-sex marriage in the states) is a little much.

In addition, Alito's assertion of "[t]he silence of the Constitution" on the question of same-sex marriage is simply vacuous question-begging. The Constitution does not mention same-sex marriage per se, but it does guarantee federal due process rights than have long been held to encompass equal protection rights as well. The Constitution is not silent on the question of invidious discrimination, and for the reasons stated by the majority there can be no serious question that DOMA was intended to stigmatize a class of people and single them out for unequal treatment.

Chief Justice Roberts's short dissent, however, is right to point out the relative narrowness of the majority's holding:

But while I disagree with the result to which the majority’s analysis leads it in this case, I think it more important to point out that its analysis leads no further. 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.

Which brings us to the other big LBGT rights opinion of the day: Hollingsworth v. Perry, which concerned the constitutionality of Prop 8, the initiative that banned same-sex marriage in California. The Roberts dissent in Windsor telegraphed before the opinion was even released that Perry did not create a right to same-sex marriage, and indeed the court decided to simply duck the question for the time being. This time, Roberts's narrow views of standing prevailed. Because the plaintiff won his suit and no representative of the government of California was willing to defend the constitutionality of Prop 8, there was according to the majority no case to resolve and hence the Supreme Court lacked jurisdiction. The result is that Prop 8 will be struck down (as the district court ruled) without creating a federal right to same-sex marriage in any other state.

In my view, resolving the case on standing grounds is the worst of the "good" outcomes that could have been reached. Allowing lower court decisions holding laws unconstitutional to stand without further review because the current government won't defend them is a potentially dangerous precedent, further narrowing standing rules that are already too narrow. The outcome is preferable to upholding Prop 8 but is definitely inferior to any opinion ruling Prop 8 unconstitutional on the merits.

What is fascinating, however, is the vote breakdown in the case. The majority in Perry consisted of Roberts and Scalia (who rejected standing in both cases) joined by three members of the Court's liberal wing: Ginsburg, Breyer, and Kagan. In dissent, Kennedy and Sotomayor (who believed there was standing in both cases) were joined by two conservatives who opposed standing in Windsor, Thomas and Alito. The most obvious way of interpreting the vote lineup, which doesn't map on to the typical preferences of a majority of justices on either standing or equal protection law, is that nobody trusted Kennedy on the merits. I could find no hint in either Kennedy's majority opinion in Windsor or his dissent in Perry of how he would have ruled if compelled to consider the merits. This question will simply remain open for the time being.

In combination, then, these two rulings are a solid base hit for gay and lesbian rights rather than a home run. The Court did not apply heightened scrutiny to sexual orientation or rule state bans on same-sex marriage unconstitutional. But it did indirectly extend same-sex marriage to a state with nearly 40 million residents and ensure that those in same-sex marriages have gained access to the federal benefits they're entitled to. In the context of the current Court, this kind of incremental progress is worth celebrating, even if a great deal more work remains to be done for gays and lesbians who in a majority of American states are still having their fundamental rights denied.

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