Last week the Supreme Court has ruled in United States v. Windsor that section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. For all purposes of Federal laws, section 3 defined marriage as a union between one man and one woman. The case arose in New York, under the law of which same-sex couples may enter a status that New York defined as marriage. Ms Windsor, a resident of New York, was the beneficiary of her deceased same-sex spouse’s sizeable estate. Under Federal tax law as affected by section 3 of DOMA, she could not claim the marital exemption that would have sheltered all her inheritance from the IRS. Rather, she was assessed over US$363,000 in Federal estate taxes.
The legal issue, as the Court chose to define it in the majority opinion, was whether the Federal constitution was violated when it applied its definition of marriage to the resident of a state in which the definition was broader. In this situation, the Court held, DOMA is unconstitutional as “a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”
As the dissents of Justice Scalia and Justice Alito make clear, the reasoning and legal principles on which the ultimate result was based remain murky. It is as if the Court went out of its way to mystify the exact reasons for holding unconstitutional a Federal law that was enacted by overwhelming majorities in 1996 and signed into law by President Bill Clinton — not exactly a hateful, bigoted conservative. The murkiness may well serve as a cover to allow the decision to be used later for an even more expansive ruling.
In his dissent, Justice Scalia predicts that this decision represents but a way station on a journey to another ruling that will prohibit the Federal government and the states from limiting the definition of “marriage” in any way. Justice Scalia is right, for the majority seems to be following a jurisprudential road that we have seen before in matters involving sex.
The Windsor opinion serves the same role for “gay marriage” as the case, Griswold v. Connecticut (1965), served for abortion almost half a century ago. It was in Griswold that the Court penned the infamous language that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” In Griswold, the Court ruled unconstitutional a state law prohibiting the sale of contraceptives because it impinged “the zone of privacy created by several fundamental constitutional guarantees,” thus offending due process.
Strictly speaking, the Griswold opinion addressed only the rights of a married couple to purchase contraceptives, but the principle announced in the decision clearly extended further. The Court quickly jettisoned its concern for the marital relationship in favor of a concern for the sexual behavior of individuals, married or not (see Eisenstadt v. Baird, 1972). Griswold’s concept of privacy then became the linchpin of Roe v. Wade in 1973. When one reads the decisions in chronological order, it is hard not to conclude that Griswold was intended only to be a way station and not the destination, and its stress on protecting the marital relationship was just rhetoric.
In our time, the next case in the trajectory of marriage jurisprudence may constitute the Roe v. Wade of marriage laws, in which the Court might well use Windsor as a precedent to strike down the marriage laws of the states that still fail to recognize same-sex marriage.
It is hard to believe that the majority does not deliberately intend such a result. If it did not, it would have decided the case on grounds of federalism, rather than the vague Fifth Amendment ground that it ultimately cited. In fact, as Justice Scalia observes, the majority describes at some length the almost exclusive role of the states in the area of family law. For most of our history, the Federal courts and Congress have acknowledged that the Federal government has no role in such things as marital status, divorce, and property succession upon death (probate). This lengthy discussion, it seems, turns out to have been the equivalent of a head-and-body fake in basketball, for Federalism does not form the basis of the holding.
Justice Scalia wonders if the majority’s aim was rhetorical, to add a veneer of respectability to a ruling not only novel in Federal jurisprudence, but flatly contradictory to the entirety of American tradition on marriage and homosexuality up to the 1990s. A reader may justifiably conclude that that it is a tactic that appears to have been taken straight from the Griswold playbook.
The majority says that by invading states’ rights, DOMA represents “discrimination of an unusual character” that indicates nefarious purposes and justifies “careful consideration” (quoting Romer v. Evans, 1996). Justice Kennedy, the author of the majority opinion in Windsor, was also the author of Romer and it is remarkable that he quotes Romer immediately following a discussion of states’ rights. Romer actually displayed a breathtaking disregard for states’ rights.
Readers may recall that the plaintiff in Romer challenged a Colorado constitutional amendment, adopted by a vote of the people, in which the state and local governments were forbidden from considering homosexuals to be a class that deserves any more protection in the state constitution than other citizens are. The Supreme Court ruled in Romer that they had to be given a special status in the law, notwithstanding the Colorado constitution, because the equal protection clause of the Federal constitution would be violated if they were not.
The fact that Romer totally rejected any deference to states’ rights when the state refused to recognize homosexuals as a special class supports a conclusion that citing states’ rights in Windsor is a rhetorical ploy and not a statement of principle that can be relied upon in the future.
Legal scholars will soon expend much ink future divining just what part of the Constitution Windsor is based on. Moreover, the ambiguity in the majority’s language will undoubtedly vex lower court judges who have to apply it in future cases. The case law cited in Windsor is largely drawn from equal protection jurisprudence, but later comments in the majority opinion indicate that due process under the Fifth Amendment is its foundation.
The Fifth Amendment encompasses both equal protection and due process when Federal statutes and actions are under scrutiny, but the two protections are usually reviewed separately and under somewhat different rationales. Perhaps the Court was deliberately vague in the expectation that the lower Federal courts will use their imaginations to create various lines of reasoning from which the Court may draw what it finds useful in the future.
It is hard to predict what ground the future Roe v. Wade of homosexual marriages will cite as its legal basis for imposing “gay marriage” on the states that have not yet enacted it.
Clearly the majority in Windsor does not want to tie the future Court’s hands. Perhaps the Windsor majority cannot agree among themselves what the basis should be. Current members of the Court may recall that Roe v. Wade was heavily criticized for its poor reasoning, even by its own supporters. Justice Ginsburg, as an attorney and afterward as a judge, has long opined that the right to abortion should be founded on the equal protection clause. The author of Windsor joined in the plurality opinion of Planned Parenthood v. Casey, in which the “right” to abortion was recast from a fundamental right of privacy into a less-fundamental liberty interest. It is quite possible that the majority in Windsor did not want to be very specific about its grounds so that the future Court would not be tied to any particular legal theory and could benefit from commentary on the legal theories that are developed by the lower courts.
Nothing is certain in this life, of course, but Windsor does not bode well for the future of traditional marriage in American law. It will be for other columns to explore its implications for additional mutations of marriage — particularly polygamy and polyandry, its possible consequences for First Amendment freedoms, and how it will affect the lives of ordinary people in the United States.
James S. Cole is a graduate of Harvard Law School who practices law in St. Louis, Missouri.