Understanding Windsor and its impact on same-sex marriage laws

June 26, 2013

Supreme Court LGBTWe finally have the opinion in U.S. v. Windsor, the case challenging the constitutionality of Section 3 of the Defense of Marriage Act.  Section 3 limits the definition of “marriage” for the purposes of federal law to only heterosexual couples.

The decision was five to four, with Justice Kennedy writing the majority opinion, joined by the liberal wing of the Court (Justices Breyer, Ginsburg, Sotomayor, and Kagan).

As you’ve probably heard already, Justice Kennedy’s majority struck down DOMA’s Section 3 as unconstitutional.

What’s the immediate impact of Section 3’s demise?

As Justice Kennedy noted in his majority, there are over 1,000 federal laws that rely on DOMA’s heterosexual-only definition of marriage.

Now, same-sex spouses living in a state that recognizes that union are now eligible for federal benefits (e.g., Social Security, tax, etc) previously reserved only for heterosexual spouses.

And, of course, Edie Windsor gets a refund of the $363,053 that she paid when her same-sex spouse died in 2009 (plus interest).

True, this is absolutely a huge win for same-sex married couples and LGBT rights in general.  But, there’s a lot more to this decision than simply the death of Section 3.

The ruling will undeniably raise new questions about its impact on other laws affecting same-sex couples.

What about DOMA’s Section 2, which provides states that refuse to recognize the valid same-sex marriages of other states an exemption to the Full Faith and Credit Clause?

And what about state-level DOMAs: statutes or constitutional amendments that limit the recognition of marriage to heterosexual couples?

Kennedy’s opinion seemed to take these two considerations into account.

First, in regards to Section 2, it seems that Kennedy wrote his opinion to specifically protect that provision.

Anthony KennedyYes, the Section 3 was struck down on Equal Protection and Due Process grounds under the Fifth Amendment, finding that “[t]he Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”

Theoretically, that holding should all but spell the end for Section 2, since the law allows individual states to bypass federal law to indulge in a state’s “bare congressional desire to harm a politically unpopular group” (I use Kennedy’s language in describing the intent behind DOMA because identical justifications were made by Congress in passing DOMA that were made by each state enacting similar laws).

But the Fifth Amendment’s liberty protections weren’t the only justification for Kennedy’s decision: his opinion also repeatedly stated that “’regulation of domestic relations’ is ‘an area that has long been regarded as a virtually exclusive province of the States.’”

Thus, while Windsor certainly recognizes an Equal Protection and Due Process violation in the federal government’s limiting the federal definition of marriage to heterosexual couples, the decision also holds that the federal government does not have the authority to tell the states what is and is not “marriage.”

There are two dynamics at work here.

First, Justice Kennedy obviously had some fears that a Windsor decision striking down DOMA’s Section 3 on Equal Protection grounds would inevitably lead to the destruction of Section 2 (which would effectively legalize same-sex marriage nationwide).

At oral arguments, Justice Kennedy expressed some concerns about the Court making decisions for the states on social issues.  This addition of states being the final arbiter of the definition of marriage squarely addresses those concerns.

Second, Justice Kennedy could have, from a legal perspective, struck down Section 3 on purely federalism principles. 

But, Justice Kennedy, who also wrote the majority opinions in two recent LGBT rights victories – 1996’s Romer v. Evans and 2003’s Lawrence v. Texas – would not want to leave LGBT rights advocates with a seemingly hollow victory by making Windsor based only on “states’ rights” without any mention about how the constitutional rights of same-sex couples were violated by DOMA.

To that end, he not only put forth robust Equal Protection and Due Process arguments, he gave very illustrative accounts of how DOMA was adversely affecting same-sex couples and families on a personal level:

DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.  By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. [citations omitted]

Clearly, Kennedy went out of his way to acknowledge the rights of same-sex couples.

However, there likely isn’t enough in Windsor to justify the invalidation of Section 2.  The federalism rationale is just too strong for the ruling to be used as precedent in such a challenge.

But, I’m not so sure that the same is true with state-level laws banning same-sex marriage.

Security guards walk the steps of the Supreme Court before Justice Elena Kagan's investiture ceremony in WashingtonUnless there was some language in Kennedy’s opinion stating that the principles of incorporation against the states simply don’t apply here, I just can’t see how the rights that Kennedy recognized under the Fifth Amendment for same-sex couples wouldn’t instantly be transferrable to the Fourteenth Amendment against the states.

Yes, he did conclude with the statement, “This opinion and its holding are confined to those lawful marriages [(referring to legal state-level same-sex marriages)].”

But, how else are we (and, more importantly, federal judges) to interpret this?

“[T]hough Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.”

Or this?

“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons.”

Or this?

“[DOMA] frustrates New York’s objective of eliminating inequality by writing inequality into the entire United States Code.”

Does Justice Kennedy truly expect the lower federal courts to believe that all of the Equal Protection and Due Process rights that married same-sex couples are owed under Windsor inexplicably do not apply to unmarried same-sex couples?

Or that the principles of incorporation will simply fail to apply on this and only this issue?

Obviously, I’m incredulous, but what I believe doesn’t matter.  What matters is what the courts say.

But, I would be quite surprised if Windsor isn’t used as precedent in a wave of new legal challenges to the validity of state-level same-sex marriage bans.

After all, nearly all of such state bans are modeled after DOMA’s Section 3 – underlying rationales and all.

Windsor has all but ensured that this isn’t the last that Supreme Court will hear about same-sex marriage.

And perhaps Justice Kennedy knew that; perhaps he simply wanted to give the states a few more years to progress, and by the time the next wave of litigation on same-sex marriage reached the Supreme Court, the number of states allowing same-sex marriage would outnumber the number banning it, such that the impact of a ruling invalidating such bans as unconstitutional would be greatly diminished, relative to today.

Of course, the only one who can say for sure is Justice Kennedy.

Regardless of his intentions, Justice Kennedy’s opinion has opened a new door, and it will be very interesting to watch what comes through.