Was Windsor Justice Kennedy’s national referendum on same-sex marriage?

February 21, 2014

Supreme Court LGBTLast week, the U.S. District Court for the Eastern District of Virginia struck down Virginia’s statutes and constitutional provisions prohibiting the state from recognizing same-sex marriages.  The ruling is the latest in a line of several other state and federal rulings either striking down or seriously eroding the same-sex marriage bans of their respective state.

All of these rulings have come in the past nine months.  Why?  Because of the Supreme Court’s U.S. v. Windsor decision from June of last year.  The opinion of every one of these rulings relied on Windsor, albeit in varying degrees, in reaching their conclusions.

But to anyone familiar with Justice Kennedy’s Windsor opinion, such reliance on the ruling to dismantle state-level restrictions on same-sex marriage may seem a bit incongruous.  True, the opinion unequivocally struck down the federal same-sex marriage restrictions codified in Section 3 of the Defense of Marriage Act (limited federal definitions of marriage to opposite-sex spouses), citing Equal Protection and Due Process grounds.

However, the Windsor opinion also repeatedly states that “’regulation of domestic relations’ is ‘an area that has long been regarded as a virtually exclusive province of the States.’”  This holding clearly gives support to the notion that individual states may define marriage as they see fit – without interference from the federal government.  However, this notion is seemingly at odds with the other significant holding of Windsor discussed earlier: that legal limitations against same-sex marriage (generally) violate the Constitution’s Equal Protection and Due Process clauses.

I actually discussed this in greater detail in my post about the ruling at the time of its announcement, so instead of retreading the same ground, I’ll cut to the chase:  Justice Kennedy likely didn’t want Windsor to instantly spell the end of all state-level same-sex marriage bans, which it would have without the additional language apparently giving deference to the states.

But, as notably pointed out in Justice Scalia’s dissent, the majority opinion’s “limiting assurance” – that is, that the states, not the federal government, retain the authority to define “marriage” – “will be meaningless” in the face of the majority’s Equal Protection and Due Process holdings.

And it appears that Justice Scalia’s predictions have come to pass: those rulings dismantling state DOMAs have given little to no meaning to Windsor’s “limiting assurance” – instead favoring the parts of the opinion that relate to the constitutional protections for same-sex couples’ right to marriage.

Why did this happen?  That is, why have rulings on the issue in the past nine months been overwhelmingly in favor of same-sex marriage rights when the Windsor majority was seemingly written to be interpreted either way?

Justice Scalia claims in his dissent that the majority opinion was written as such that its use as precedent tilts far more to the side of same-sex marriage legalization than of state rights to define marriage.  And Justice Scalia is half-correct.

The Windsor majority opinion was indeed written as such to provide far more legal ammunition to challengers of state same-sex marriage bans than their defenders – in today’s cultural environment.  That is to say, the effect of the Windsor decision is much different today than it would have been, say, ten years ago – because current attitudes about same-sex marriage are so vastly different than they were a decade ago.

If Windsor were decided in 2003 instead of 2013, assuming that the Court would have reached the same decision, the majority of courts would be likely citing to the ruling to uphold state bans on same-sex marriage, not overturn them.

And my guess is that was Justice Kennedy’s point in the Windsor opinion: not to hide his true intentions behind legal ambiguities, but to give the lower courts a choice on the matter.  Kennedy himself voiced concern at oral arguments about making decisions for the states on social issues like these, and the Windsor opinion is written as such as to allow courts to plausibly cite to the ruling either in support of or against state laws banning same-sex marriage.

It just happens that attitudes today are largely in favor of the legalization of same-sex marriage.  Did Justice Kennedy know this when writing the opinion?  Who knows.  But it seems very characteristic of Justice Kennedy to present the option to the lower courts to decide for themselves, rather than having the Supreme Court decide the issue for them.

Nevertheless, with this huge wave of new rulings striking down state same-sex marriage bans, it is only a matter of time before the issue comes before the high court again.

At that point, if there’s enough national support for same-sex marriage legalization – as would be evidenced by a critical mass of court rulings and state law actions in support of that position – Justice Kennedy may have little remaining reservations about ruling in favor of a constitutional right to marriage for same-sex couples.