Straight Talk on Gay Marriage: The DOMA Decision

The long-awaited opinions are in. The Supreme Court has ruled on the Defense of Marriage Act (DOMA) and on California’s Proposition 8. Its decisions have lit up news and social media. But what did they say? This first update will analyze United States v. Windsor, which challenged the federal government’s definition of marriage as between 1 man and 1 woman.

This was a 5-4 split decision. Justice Kennedy wrote the opinion. The bottom line: Section 3 of DOMA, which defines marriage for all federal purposes is unconstitutional and cannot be enforced.

But rather than deciding, as Mrs. Windsor and the Solicitor General had hoped, that the law unconstitutionally discriminated against a class of people entitled to protection due to a history of abuse or mistreatment, the Court focused instead on the States’ almost unrestricted right to define what marriage is.

The Court deferred to the State of New York’s decision to honor gay and lesbian couples’ relationships by granting them the label ‘marriage’. This was treated no differently than a state’s limit on the age of parties who can marry, or how closely a couple can be related. Under this new case, once a state has given its blessing to a class of relationships by calling them marriages, the federal government must respect that blessing.

Justice Kennedy then wrote that DOMA violated gay couples’ Due Process rights under the 5th Amendment. By refusing to acknowledge their legally recognized marriages, Kennedy said DOMA injured a class of citizens the state sought to protect. While the Court did not explicitly classify sexual orientation as a “protected class” entitled to “heightened scrutiny” as it has race or gender, it did reason:

“In determining whether a law is motivated by an improper animus or purpose, discriminations of an unusual character especially require careful consideration.” Slip Op. p. 20 [Internal quote marks and citations omitted]

The Court found that the express purpose of DOMA (as shown by the legislative record and the very title of the act) was to impose a stigma and second-class status on same-sex marriages. This was unacceptable and unconstitutional.

(The court also ruled on a complicated procedural issue, which will be discussed in a separate post.)

Chief Justice Roberts concurred separately to warn that the same logic used here in favor of same-sex couples could be used to defend state laws defining marriage traditionally.

Justice Scalia wrote the primary dissent arguing that DOMA had a rational basis of streamlining enforcement of federal laws and should therefore be upheld. He chastised the majority opinion for not making clear the level of scrutiny that applied and for (in his view) clearly taking a side on how states should define marriage.

Justice Alito dissented too, saying that because DOMA did not affect any state law, it did not interfere with the state’s definition of marriage and was therefore constitutional. He said there is no constitutional right to same-sex marriage, and no justification for heightened scrutiny against discrimination based on sexual orientation.

All together, this opinion takes a big step in favor of LGBT couples by forcing the federal government to recognize their marriages. But for Michigan, little will change until the legislature or the courts decide to recognize gay marriage in this state.

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