Decision Day for the Same-Sex Marriage Cases

July 3, 2013

Security guards walk the steps of the Supreme Court before Justice Elena Kagan's investiture ceremony in WashingtonWindsor was released first: the Supreme Court struck down the Defense of Marriage Act’s definition of marriage as between a man and a woman.

Working initially from a paper copy of the decision, soon thereafter on Westlaw, and then on our headnote writing program, I began to write headnotes for the case, oh-so-very thankful that it was a straight-up 5-4 decision. There was no need to count heads to see if a particular section or subsection of the Court’s decision had a majority, and so need to insert a dreaded “per legend” in the headnotes.

Of the 28 headnotes for the case, four were “concrete.” That is, they resolved particular points in dispute in the case and did not address an abstract point of law. The first three concrete headnotes dealt with standing issues. The fourth, headnote 25, stated the Court’s central holding:

92 Constitutional Law
92XXVII Due Process
92XXVII(G) Particular Issues and Applications
92XXVII(G)18 Families and Children
92k4383 Marital Relationship
92k4385 k. Same-Sex Marriage. Most Cited Cases
253 Marriage  KeyCite Citing References for this Headnote
253k17.5 Same-Sex and Other Non-Traditional Unions
253k17.5(1) k. In General. Most Cited Cases
Provision of Defense of Marriage Act (DOMA) defining, for federal law, “marriage” only as a legal union between a man and a woman and “spouse” only as a person of opposite sex who was a husband or wife, was unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment; DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage operated to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages and placed a stigma upon all who have entered into same-sex marriages made lawful by the unquestioned authority of the States. U.S.C.A. Const.Amend. 5; 1 U.S.C.A. § 7.

A revisor then took a look at the case enhancements to confirm the KeyCite treatments, most especially the “held unconstitutional” for 1 U.S.C.A. § 7. Following that review, one click of the mouse sent the case enhancements to Westlaw. Meanwhile, a group of classifiers was busy figuring out where exactly each headnote fit in the Key Number System. The case crossed eight topics, from the seldom-seen “Amicus Curiae,” to the ubiquitous “Constitutional Law,” to “United states.”

I then wrote an article on Windsor that was loaded to various Westlaw databases that afternoon, including the Westlaw Bulletin (WLB). You can find it at 2013 WL 3196928. The article traces the path the case took to get to the Court, discusses the reasoning of Justice Kennedy’s majority opinion, and pulls quotes from the dissenting opinions of Justice Scalia and Chief Justice Roberts.

Next up: what happened to Proposition 8.