Breaking Down the Supreme Court’s DOMA Decision

Both sides of the same-sex marriage debate can claim temporary victories in the Supreme Court’s much anticipated decision on Wednesday in United States v. Windsor, which overturned the 1996 Defense of Marriage Act. In the long term, however, the decision is without a doubt a lopsided win for advocates of gay rights.

Here are the three most important takeaways from the case:

1)  The Court’s DOMA ruling does not recognize same-sex marriage as a constitutional right

Justice Anthony Kennedy’s majority opinion in Windsor does not require states to permit same-sex marriage, nor does it require more conservative states to recognize same-sex marriages which are legal in others. The opinion only goes so far as to conclude that the federal government may no longer refuse to recognize gay marriages which were legally performed pursuant to an individual state’s law.

In that respect, the decision is as much a victory for state’s rights federalists as it is a victory for gay rights advocates.

Social conservatives may view the opinion as a major defeat, but the fact that the justices agreed that the federal government should defer to “state-law policy decisions with respect to domestic relations” is a welcome breath of fresh air coming from the liberal wing of the Court.

2)  Both wings of the Court are preparing the legal groundwork for the next big marriage case

Although the Windsor majority casually acknowledged that “[the] opinion and its holding are confined to those lawful [same-sex marriages],” the five justices can hardly hide the fact that they would be inclined to strike down state laws prohibiting same-sex marriage should the question ever properly arrive before the Court.

In his own dissenting opinion, Chief Justice John Roberts went out of his way to highlight his view that “[t]he Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States … may continue to utilize the traditional definition of marriage.”

Taken at face value, the majority might have presented a federalism argument against DOMA mixed with a few splashes of Equal Protection and Fifth Amendment Due Process theory, but the real rationale of the majority opinion according to Justice Antonin Scalia “is that DOMA is motivated by [the] ‘bare . . . desire to harm [homosexuals].”

Expect that “desire to harm” phrase to be used repeatedly in the inevitable litigation over state laws prohibiting gay marriage in the future.

3)  The cases illustrate the rift in opinion over the Judiciary’s role in American democracy

The majority seemed almost giddy to argue that its moral judgment in favor of same-sex marriage is superior to Congress’s hateful moral judgment against it (to paraphrase Justice Scalia). On the other hand, the conservative justices argued that the Constitution is silent on the issue of gay marriage, and that the traditional political process was the most appropriate method of settling the issue.

Rather than allowing the people to decide fundamental societal questions concerning gay marriage, Scalia argued that “the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat.” Given the clear political momentum in favor of same-sex marriage, perhaps the Court would be wise to sit-out of a nationally divisive issue out for a change.

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