In Supreme Court Gay Marriage Decision, Justices Reach for Equality

Matt Berman, Brian Fung, Brian Resnick and Matt Vasilogambros
National Journal

In a 5-4 decision, the Supreme Court made history by striking down the Defense of Marriage Act in the Windsor v. United States case, ruling it unconstitutional on equal protection grounds. The majority opinion was written by Justice Anthony Kennedy. Chief Justice Roberts and Justices Scalia, Thomas, and Alito were in dissent. 

The Supreme Court also dismissed Hollingsworth v. Perry, the case around California's Proposition 8, on standing.

Why the Court Brought Down DOMA


In Windsor, Justice Kennedy writes that the Defense of Marriage Act:

...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.

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others.

Kennedy writes that "Under DOMA, same-sex married couples have their lives burdened, by reasons of government decree, in visible and public ways."

Kennedy then goes on to list the ways "from the mundane to the profound" that DOMA impacts same sex couples. They can't share government health care benefits, can't file taxes jointly, for instance. The justice also makes reference to the changing nature of the military, writing "it prohibits them from being buried together in veterans' cemeteries."

What the Dissenters Had to Say

In his dissent, Justice Scalia criticizes the court for excessive activism, saying "we have no power under the Constitution to invalidate this democratically adopted legislation." He is not too pleased that the Court took the case at all:

...the plaintiff and the Gov- ernment agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?

He doesn't hold much back in his disapproval of the Court's majority, saying "It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race."

Chief Justice Roberts is decidedly less heated in his dissent. He wrote that the high court should not have ruled on this case, citing congressional action:

Interests in uniformity and stability amply justified Congress's decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world.

Roberts also criticizes the majority's logic behind its case, putting further emphasis on the rights of states to determine marital statuses:

The majority sees a more sinister motive, pointing out that the Federal Government has generally (though not uniformly) deferred to state definitions of marriage in the past. That is true, of course, but none of those prior state-by-state variations had involved differences over something—as the majority puts it—"thought of by most people as essential to the very definition of [marriage] and to its role and function throughout the history of civilization.

In another seperate dissent, Justice Samuel Alito argues that the federal government did not violate the Constitution by defining marriage. "It leaves the choice to the people, acting through their elected representatives at both the federal and state levels," he writes. Taking a strict view of the Constitution, he continues, "the Constitution does not guarantee the right to enter into a same-sex marriage. Indeed, no provision of the Constitution speaks to the issue."

Alito also writes that the issue of same-sex marriage is so new to the country, there is no knowing of the broader implications of allowing such an institution, citing the "ancient and universal human institution" of family." The justice made a similiar point during oral arguments for the case in March.

"At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are certainly not equipped to make such an assessment."

What About Proposition 8?

In his majority opinion for the Court in Hollingsworth, Chief Justice Roberts explains why the decision to dismiss the case:

For there to be such a case or controversy, it is not enough that the party invoking the power of the court have a keen interest in the issue. That party must also have "standing," which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit.

Once Proposition 8, which limited marriage in California to heterosexual couples, was approved by the voters, the measure became "a duly enacted constitutional amendment or statute." Petitioners have no role—special or otherwise—in the enforcement of Proposition 8. They therefore have no "personal stake" in defending its enforcement that is distinguishable from the general interest of every citizen of California.

In his dissent, Justice Kennedy argues that the high court did have enough standing to make a ruling in this case.

The Court today unsettles its longtime understanding of the basis for jurisdiction in representative-party litigation, leaving the law unclear and the District Court's judgment, and its accompanying statewide injunction, effectively immune from appellate review.

Kennedy also goes after state officials for opposing Prop 8 in the manner in which it did:

In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century.

The New State of Gay Marriage in America

Here's what the map of states allowing same-sex marriage now looks like, from the New Yorker:

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(The New Yorker)

How the Historic Cases Came To Be

The Defense of Marriage Act is at the heart of the United States v. Windsor case. The Act, signed by Bill Clinton in 1996, restricts federal benefits and recognition of marriage to heterosexual couples. The Windsor case particularly challenged Section 3 of the law as violating the Fifth Amendment's guarantee of equal protection. Section 3 defines "marriage" as the union between one man and one woman and "spouse" as "a person of the opposite sex who is a husband or a wife."

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Edith Windsor in her New York apartment by a photo of Thea Spyer, December 12, 2012. (AP Photo/Richard Drew)

The story behind the case is something of an epic love story. The case was brought by 84-year-old New Yorker Edie Windsor. Windsor married her partner of over 40 years, Thea Spyer, in Toronto in 2007 after Spyer—who was suffering from multiple sclerosis—was told she had less than a year to live. The marriage was recognized in their home state of New York, but not by the federal government. When Spyer died in 2009, Windsor had to pay the federal government more than $363,000 in estate tax on Spyer's estate, as the government didn't grant Windsor benefits accorded to heterosexual couples. Windsor sued the federal government over that payment in 2010, and after a winding trail that case made it to the Supreme Court. "The fact is, marriage is this magic thing," Windsor told NPR earlier this year. Now she is leading the fight to make it universal. And on Wednesday she was handed a massive victory.

The Hollingsworth v. Perry case is focused on California's Proposition 8. Proposition 8 was a 2008 California ballot initiative that changed the state's constitution to limit marriage to heterosexual couples. The initiative, which passed, was found to violate the Due Process and Equal Protection clauses of the constitution by United States District Court Judge Vaughn Walker in 2010. That ruling was affirmed by a Ninth Circuit Court of Appeals panel in February, 2012. The appeals process then brought the case to the Supreme Court.

But Hollingsworth isn't just about same-sex marriage. It's also a matter of whether or not the case's petitioners had the legal right to bring the case. During March's oral arguments, several justices took issue with the whether or not proponents of a ballot initiative have the legal right to defend the initiative in court (seeing how once the initiative passed, their legal interest in it becomes questionable). As Justice Roberts said during the argument, if the case had been brought by a state official who did not want to perform same-sex marriage, standing wouldn't be an issue. This opinion won out in the end.

The Statement From the President

In full, emphasis is ours.

I applaud the Supreme Court's decision to strike down the Defense of Marriage Act. This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. We are a people who declared that we are all created equal – and the love we commit to one another must be equal as well.


This ruling is a victory for couples who have long fought for equal treatment under the law; for children whose parents' marriages will now be recognized, rightly, as legitimate; for families that, at long last, will get the respect and protection they deserve; and for friends and supporters who have wanted nothing more than to see their loved ones treated fairly and have worked hard to persuade their nation to change for the better.


So we welcome today's decision, and I've directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.


On an issue as sensitive as this, knowing that Americans hold a wide range of views based on deeply held beliefs, maintaining our nation's commitment to religious freedom is also vital. How religious institutions define and consecrate marriage has always been up to those institutions. Nothing about this decision – which applies only to civil marriages – changes that.


The laws of our land are catching up to the fundamental truth that millions of Americans hold in our hearts: when all Americans are treated as equal, no matter who they are or whom they love, we are all more free.

And here's video curtosies of the New York Times' Brian Stelter of President Obama calling the plantiffs in the Proposition 8 case, live on MSNBC:

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Reactions From Twitter

Mentions of DOMA and Proposition 8 peaked in the 10-11 o'clock hour.

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(Topsy Analytics)

As Ryan Lizza notes, the Windsor decision has a big impact on immigration reform:

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And Obamacare:

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And Edie Windsor responds to her victory:

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The New Yorker has incredible photos of Edie Windsor learning of her victory at the Court over DOMA. At a press conference Wednesday afternoon, Windsor said her "immediate reaction was just tears."

Here are some reactions on Twitter from elected officials:

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Republican members, meanwhile, spent the moments following the decisions largely talking about anything else:

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Rep. Jim Bridenstine (R-Okla.) was seemingly the first Republican member of Congress to mention the Court decisions on Twitter, at 11:15 AM:

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And from one of the three Republican senators who supports same sex marriage, Alaska's Sen. Lisa Murkowski:

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In a statement, Rep. Michele Bachmann said: “Marriage was created by the hand of God. No man, not even a Supreme Court, can undo what a holy God has instituted. What the Court has done will undermine the best interest of children and the best interests of the United States.”

And Sen. Rand Paul said that "I would tell people who are for traditional marriage: the battle is lost at the federal level; concentrate on your state."

Sen. Rob Portman, R-Ohio, who came out in favor of same-sex marriage earlier this year, said he would have preferred if Congress had repealed DOMA, but said he "agrees with" the high court's ruling to leave marriage to the states, reports NBC News' Matt O'Brien.

And from the speaker of the House:

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Former Arkansas governor and Republican presidential candidate Mike Huckabee went all in:

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Analysis of the Cases From Around the Web

At Balkinization, Indiana University Law Professor Gerard Magliocca writes:

Justice Scalia's dissent in Windsor is a tour de force on two points: (1) there was no standing in the case; and (2) the Court's rationale for why the holding applies only to DOMA is nonsensical...


With respect to the merits, I find Justice Kennedy's opinion hard to understand. He says it's not a federalism decision, though he talks a lot about states'-rights and marriage. He says that it is a Fifth Amendment decision, but does not explain why that Due Process Clause should be read differently from the identical provision in the Fourteenth Amendment.

And the eponymous Jack Balkin of Yale:

The dissents try to inoculate themselves from what they see coming. They expect that soon gay marriage will be overwhelmingly supported by the public, and they want to head off the charge that they are being bigoted or mean spirited by deferring to Congress and its fact finding abilities (unlike in Shelby County, decided the previous day!). Whatever you call Congress, the President, and us, they say, don't you dare call us prejudiced or bigots. Because we are not. We are reasonable people who believe in the democratic process (except, of course, when we don't).


The problem is, no judge-- whether in the majority or the dissent-- will be able to forestall history's judgment.