FantasySCOTUS: How will SCOTUS rule in Windsor?

January 15, 2013

SCOTUS ClipboardAfter months of speculation over how a Supreme Court decision in U.S. v. Windsor would play out on the nation, the states, and the laws thereof, it’s finally time to predict how SCOTUS will rule in the case.

In case you’re new to this case, Windsor is a challenge to Section 3 of the federal Defense of Marriage Act (DOMA) that restricts the federal government to recognizing only heterosexual marriages.

The decision for the Court in Windsor isn’t as simple as merely whether to uphold the Second Circuit’s ruling in the case; instead, the Court must both decide which standard of review it will use in the case (which may

Supreme Court LGBT

have a major impact on the future of same-sex marriage laws nationwide; see this post for more on that) and whether Section 3 survives under the selected standard of review.

Let’s start with the easiest Justices to predict.

First, given Justice Scalia’s comments last month analogizing “moral feelings against homosexuality” to such feelings “against murder,” it’s a fairly safe bet that he will opt for the lowest standard of review – traditional rational basis – and that he will find DOMA’s Section 3 as constitutional.

Justice Thomas hasn’t effectively announced his opinion on the case as did Justice Scalia, but if his voting history is of any indication – Thomas is the only remaining member of the Court that joined with Scalia’s dissent in Lawrence v. Texas – he will likely join with Scalia once again.

The other easy prediction is the Court’s liberal bloc, consisting of Justices Ginsburg, Breyer, Sotomayor, and Kagan; they will likely uphold the Second Circuit’s ruling in its entirety, which most notably includes the application of intermediate scrutiny to laws that discriminate on the basis of sexual orientation.

That leaves three Justices: Justice Kennedy, Chief Justice Roberts, and Justice Alito.

Kennedy is the easiest of the three to figure out here.

Considering that he authored the majority opinions of the two most recent LGBT SCOTUS rulings – 1996’s Romer v. Evans and 2003’s Lawrence – and that both of them were major victories for the LGBT rights movement, it’s fairly clear that Kennedy will vote to strike down Section 3.

But which standard of review will he opt for?

As discussed earlier, the standard of review that the Supreme Court espouses in Windsor will have major implications for same-sex marriage laws nationwide.

Should Kennedy side with the liberal bloc in upholding the Second Circuit’s ruling – that homosexuals are a “quasi-suspect class” – state same-sex marriage bans are almost certain to face invalidation.

I just realized that I have been discussing “quasi-suspect classification” for as long as I’ve been discussing Windsor, but I never laid out the judicial factors to determine whether a group qualifies for the classification; they are:

  1. whether the class has been historically “subjected to discrimination;”
  2. whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society;”
  3. whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;” and
  4. whether the class is “a minority or politically powerless.”

The factor that is particularly relevant here is the final one: at the time of the Second Circuit’s ruling, the 2012 elections hadn’t occurred yet, and the electorates of Maine, Maryland, and Washington hadn’t decided by popular vote to legalize same-sex marriage.

This event, some argue, demonstrates that LGBT individuals aren’t “politically powerless,” and thus aren’t entitled to quasi-suspect classification.

However, this view plainly misinterprets Supreme Court precedent on the issue.

As stated by the Second Circuit in Windsor, “The question is not whether homosexuals have achieved political successes over the years; they clearly have.”

Instead, the question is whether they are “in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.”

If anything, the discrepancy between states on the legality of same-sex marriage shows that LGBT individuals are all but subject to the whims of “the majoritarian public,” and this is likely also how Justice Kennedy will view the issue.

I suspect, however, that November’s election results will still have a major impact in Justice Kennedy’s, and, for that matter, Chief Justice Roberts’, decision in Windsor.

Justice Kennedy, one of the oldest sitting Justices on the Court today, is nearing the end of his tenure, and is considering his lasting legacy.

The Chief Justice, although still quite early in his SCOTUS career, is nonetheless also concerned with his legacy, since his name is attached to all major decisions made by the “Roberts Court.”

The November elections were likely a clear indication to both Kennedy and Roberts as to the direction of public opinion on the issue of same-sex marriage.

As such, they should have very few remaining reservations on the reaction of the public at large to – and, more importantly, on history’s view of – a sweeping Windsor decision that causes the destruction of anti-same-sex marriage laws nationwide and that history would remember as one of the largest milestones of both Kennedy’s career and the Roberts Court era.

Such a milestone, Roberts and Kennedy would hope, would be on the same level as Brown v. Board of Education or Loving v. Virginia, and history would remember Windsor as a major advancement for human rights that moved the country forward as a whole.

This same motivation may also be present for Justice Alito, the last Justice remaining in this prediction, but I expect that, if Alito joins with the majority (which I believe he will), it will be primarily because of his advocacy of individual privacy protections and his libertarian beliefs.

My final Windsor verdict: affirm 7-2.

United States v. Windsor

Question Presented

Does Section 3 of DOMA violate the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State?

Lower Court’s Decision


My Prediction

AFFIRM 7-2 (Majority: Roberts, Alito, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan; Dissent: Scalia and Thomas).

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