The Supreme Court today struck down the Defense of Marriage Act, a Clinton-era federal law which disallowed the federal government from recognizing same-sex marriage and also prohibited inter-state recognition of the same.
In a 5-4 decision, the Supreme Court found that the federal government cannot take away rights under the law that the states have granted. From Justice Kennedy’s majority opinion:
The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. See Bolling, 347 U. S., at 499–500; Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 217–218 (1995). While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.
The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its mar-riage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.
Here’s Justice Scalia, writing in dissent and arguing that the Supreme Court did not have jurisdiction to decide this case:
The Court says that we have the power to decide this case because if we did not, then our “primary role in determining the constitutionality of a law” (at least one that “has inflicted real injury on a plaintiff ”) would “become only secondary to the President’s.” Ante, at 12. But wait, the reader wonders—Windsor won below, and so cured her injury, and the President was glad to see it. True, says the majority, but judicial review must march on regardless, lest we “undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.” Ibid. (internal quotation marks and brackets omitted).
That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every-where “primary” in its role.
This image of the Court would have been unrecognizable to those who wrote and ratified our national charter.
Scalia’s dissent aside, this should be a case conservatives are happy about. In both the Voting Rights Act case yesterday, which set off a firestorm on the left, and the Defense of Marriage Act today the Supreme Court ruled in favor of federal deference to the states. With the VRA, the Supreme Court ruled that the federal government can no longer treat the states like it’s 1965 in perpetuity. In the DOMA case, the Supreme Court is saying it’s unconstitutional for the federal government to refrain from recognizing marriage rights the states have granted.
Some social conservatives may not like that the effect of this ruling will be the enhancement of gay marriage (but not, I’ll remind you, the legalization of gay marriage at the state level), but they should like that it’s an endorsement for federalism which has long been trampled on in the courts.
The ruling doesn’t force states to recognize gay marriage. As an example, by my reading, if you got married in a state where gay marriage is legal but live in a state which doesn’t recognize it, you can file your federal taxes jointly with your spouse but not your state taxes.
What the ruling does, in a nutshell, is prohibit the federal government from refusing to recognize marriages the states have endorsed. Meaning the fight over gay marriage will now play out at the state level.
In a separate, less important ruling, the Supreme Court left in place a state court ruling striking down California’s ban on gay marriage finding that the defenders of the ban didn’t have standing to appeal the decision to the federal courts. Which, again, is a recognition by SCOTUS that the marriage issue should be settled in the states.