In the wake of yesterday’s decision (US v. Windsor) striking down the federal definition of marriage in
the Defense of Marriage Act, legal experts are having a hard time making sense
of what Justice Scalia called the “disappearing trail[s] of … legalistic
argle-bargle” in the majority opinion. Instead,
we are left to guess what Justice Kennedy and his four colleagues were thinking
when they wrote or joined the opinion. Here’s
our best guess at what those five Justices were really thinking when they
struck down DOMA (quotes are from the majority opinion):
Supreme Court said yesterday:
has been explained to this point should more than suffice to establish that the
principal purpose and the necessary effect of this law are to demean those
persons who are in a lawful same-sex marriage.”
What the Supreme
Court was really thinking: We
don’t agree with DOMA, so the Congress that enacted it – and President Clinton,
who signed it – must have been mean and homophobic.
Court: “it is
unnecessary to decide whether this federal intrusion on state power is a
violation of the Constitution because it disrupts the federal balance.”
sorry for going off on a tangent about federalism. Please ignore the previous seven pages of this
York’s recognition of same-sex marriage “reflects … its evolving understanding
of the meaning of equality.”
understanding of the meaning of equality will continue to evolve until it
requires us to mandate recognition of same-sex marriage in all 50 states.
Court: DOMA is
an “unusual deviation from the usual tradition of recognizing and accepting
state definitions of marriage.”
thinking: It is
implausible to claim that there’s no precedent for DOMA’s definition of
marriage, so we have to settle for calling the statute unusual.
federal statute is invalid, for no legitimate purpose overcomes the purpose and
effect to disparage and to injure [same-sex couples].”
discussion or analysis of the legitimate purposes put forth by DOMA’s
supporters is necessary, because we already told you the supporters are mean
York was responding to the initiative of those who sought a voice in shaping
the destiny of their own times … Private, consensual sexual intimacy between
two adult persons of the same sex … can form but one element in a personal bond
that is more enduring.” (internal quotation marks omitted)
thinking: We may
not excel at legal reasoning but, if any publishers are listening, we would
be great at writing self-help books.
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
thinking: If you
want to get fussy about precedent, maybe DOMA doesn’t really violate the Fifth
Amendment's liberty interest. But would
you believe us if we told you that DOMA violates equal protection?
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.”
students, don’t worry if you don’t understand this. We don’t either.
“humiliates tens of thousands of children now being raised by same-sex
telling you that kids look to federal law when determining whether to be
embarrassed by their parents, and you are going to have to take our word for it
because we’re the Supreme Court.
Court: “Responsibilities, as well as rights,
enhance the dignity and integrity of the person.”
rhetoric doesn’t add anything to our legal analysis, but it works great when
you want kids to do their chores.
opinion and its holding are confined to those lawful marriages [recognized by
would be no reason for us to say this if the logic of the opinion really
limited its holding to lawful marriages.
We would be stating the obvious.
power the Constitution grants [to Congress] it also restrains.”
thinking: We don’t think this principle applies to the Supreme Court’s power, as we make clear with this DOMA decision.