I was one of those people waiting by my computer at 10:00 EST — the moment that the decision on the challenge to the Defense of Marriage Act was announced — and downloaded the file as soon as I could find a PDF. Of course you know by now that the short version is: DOMA has been struck down. At least, that’s what all the headlines say. But they aren’t being accurate.
It’s important to realize that this case did not challenge the entirety of DOMA. It only challenged Section 3, which mandates federal non-recognition of same-sex marriages. The other main part of DOMA is Section 2, which mandates that no state need recognize another state’s same-sex marriage. That one has not yet been challenged and still stands, so saying that DOMA has been struck down is wrong. It’s still there, and a legally married same-sex couple in Washington will still become instantly and forcibly divorced the moment they drive across the border into Idaho — at least, as far as the state is concerned. They’ll retain their federal marriage rights, though, which is a huge change.
What we have now is a situation exactly analogous to the US prior to 1967, when some states allowed interracial marriage, others didn’t, and an interracial couple had no state rights the moment they crossed the border into a state that condemned their marriage as illegal and immoral. The first state to repeal its miscegenation law was Pennsylvania in 1780 (thanks to Quaker influence). When Loving v. Virginia declared all miscegenation laws unconstitutional 187 years later, there were still 16 states with such laws on their books. I expect our new iteration of this legal patchwork will have a much shorter life span, but it will still take a Supreme Court decision to end it, some states will fight to the absolute bitter end, and so far as I know, no challenges are even in the lower courts as yet. So it’s going to be a while.
That’s the caveat. Now for the main point:
THIS IS A BIG FREAKING DEAL.
History has just been made, and we watched it happen! Anyone who can name even three Supreme Court decisions in US history can probably name Loving v. Virginia. It’s one of the most important decisions in over 200 years of US civil law. United States v. Windsor has just joined it in the record books, and will be taught in high schools for decades to come. It is an instant record maker — and that’s why I was pretty sure it would happen. The Supreme Court justices were always going to vote 4 for and 4 against, with Kennedy as the swing vote, and Kennedy has long proven himself to have an eye on his personal legacy. He was not going to be on the wrong side of history. The lawyers arguing the case, and all of the Friends of the Court who submitted amicus briefs, knew this and tailored their arguments specifically to Kennedy. In this instance, a single individual honest to god turned the course of US history. This is Kennedy’s moment — and when I saw that he was the one to deliver the opinion, I had to smile. Of course he did.
Here are the passages of his opinion that resonated with me. In places, it really is beautiful. (All emphasis is mine.)
The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of ts reach and extent, departs from this history and tradition of reliance on state law to define marriage. The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and disabilities.
This struck me because to my mind, federalism is the main argument against DOMA. Yet Kennedy is saying that it is really just one of several arguments, and he believes a more important argument has to do with “dignity and status” versus imposed “restrictions and disabilities.” Gays have been talking about dignity and recognition for a long time, but when the moment came to enter the legal arena, those arguments were generally set aside as too warm and fuzzy, with more hard-edged constitutional arguments being advanced instead. To read Kennedy talking about dignity started my tear ducts tingling.
By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.
Dignity, again and again.
Then comes the very first sentence of section IV, the meat of the decision:
DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government.
Kennedy came right out and said it: DOMA is a punitive law. It has no basis in protection, preservation, or advancement of federal interests. It is punitive, pure and simple. It does not incidentally injure, it seeks to injure.
The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.
…The congressional goal was “to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.”…The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law…DOMA’s operation in practice confirms this purpose. When New York adopted a law to permit same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective through a system-wide enactment with no identified connection to any particular area of federal law. DOMA writes inequality into the entire United States Code.
And just think — this behemoth of a law, with tendrils reaching into “the entire United States Code,” affecting over 1,000 federal regulations and statues, had only one real goal: creating a wedge issue to get out the Republican vote and take back the White House in 1996. Bill Clinton signed it into law for one reason: to show his bonafides by throwing both gays and the US Constitution under the bus and thus protect his re-election. Clinton got his second term, but millions of Americans suffered for it — for 17 years.
By creating two contradictory marriage regimes within the same State, 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, see Lawrence, 539 U. S. 558, 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.
Kennedy made a point of asking about the effect of DOMA on children of same-sex married couples during the arguments, so I am not surprised to see a reference to them here. This is pure conjecture on my part, but I think that for Kennedy, the issue of punishing children for being born to a gay parent, and telling them that their family is defined as second-class by federal law, was a tipping point.
The principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.
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 marriage 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.
And so it must fall.
My grateful thanks to Justices Ginsberg, Breyer, Sotomayor, Kagan, and Kennedy. Today the United States reclaimed some of the equality and dignity it espouses, but does not always succeed in providing for its citizens. It can hold its head a little higher in the company of civilized and enlightened nations. And by extension, so can I.
This is an amazing legacy that a feisty, pissed-off old lady named Edith Windsor has created for herself and our nation. It does strike me as hilariously ironic that of all the thousand ways (literally) that DOMA could have been challenged, what finally took the worst of it down was a lawsuit against an unfair tax. Isn’t that just perfectly American?