The big enchilada: Are same-sex marriage bans now illegal?

July 5, 2013: 7:26 AM ET

Parsing the Justices' words in United States v. Windsor.

By Roger Parloff

gay-marriage-flag-620xaFORTUNE -- While gay-rights advocates indisputably won decisive victories in each of the two blockbuster cases decided by the U.S. Supreme Court last week, one on the merits and the other via a backdoor, procedural ruling, one key question still remains. That's the big enchilada: Can a state constitutionally ban same-sex marriage, as 37 currently do?

While the Court could have resolved that question in the Hollingsworth v. Perry case, which challenged the constitutionality of California's Proposition 8, it didn't. Instead, it found, 5-4, that the particular parties challenging the initiative at the appellate stage lacked "standing" to do so. (The nonruling left in place a lower court opinion that had invalidated Prop 8, handing California gay-rights advocates a statewide victory.)

Needless to say, there has been much speculation about what might have been, if the Court had reached the merits.

A second, related, fertile source of conjecture has been the weird vote split in Perry, where two of the Court's more conservative justices (Chief Justice John Roberts Jr. and Antonin Scalia) joined three of the more liberal (Justices Ruth Bader Ginsburg, Elena Kagan, and Stephen Breyer) in agreeing to dismiss the appeal on standing grounds, without any ruling on the merits. That left, of course, an equally heterogeneous klatch of dissenting justices, who were evidently ready and willing to tackle that question. These included two conservatives (Justices Clarence Thomas and Samuel Alito), one liberal (Justice Sonia Sotomayor), and the expected swing-vote in the case Justice Anthony Kennedy. Thus, while Kennedy had, as expected, authored the Court's 5-4 opinion in United States v. Windsor, issued a few minutes before Perry, striking down a key provision of the federal Defense of Marriage Act, in Perry itself he was left at the altar.

So, if not for the "standing" escape hatch, how would this Court have ruled on the big, so-called "50-state" question of whether same-sex marriage bans are constitutional? (Even if the Court had reached the merits in Perry, it could have still evaded the 50-state question, due to unique quirks relating to California's Prop 8. But let's put that aside, and see if we can mine last weeks' rulings for insight into the big question.)

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One supremely well-qualified observer, Tom Goldstein of Goldstein & Russell, thinks that, if forced to reach that question, this Court would have upheld state laws banning same-sex marriage. Goldstein is a frequent Supreme Court advocate and the founder and publisher of SCOTUSblog, an authoritative news and opinion site about the Court. (Goldstein's firm represented amici in each case supporting pro-gay rights positions.)

"The narrowness of the Court's reasoning in invalidating DOMA," Goldstein writes in an email, "suggests to me that it would not have held that there is a constitutional right to same-sex marriage." Goldstein is referring to the fact that Kennedy's DOMA ruling relied upon a unique stew of diverse rationales -- none necessarily sufficient in itself -- and it ducked the use of certain magic words that might have sounded the death knell for same-sex marriage bans. (Kennedy did not, most notably, write that classifications based on sexual preference trigger "heightened constitutional scrutiny" -- an imprecation that typically dooms any law subjected to it.)

Though I lack the qualifications to climb into the ring with Goldstein, I'm going to disagree with him anyway. I am emboldened by the fact that one Court insider has already spoken out on this question publicly.

"The view that this Court will take of state-prohibition of same-sex marriage is indicated beyond mistaking by today's opinion," Justice Antonin wrote in an unusually bitter dissent in Windsor, even for him. " The real rationale of today's opinion," he continued, "is that DOMA is motivated by 'bare … desire to harm' couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status."

Scalia then went on to quote three sample passages from Kennedy's majority ruling and showed how, by simply replacing the word "marriages" with "constitutionally protected sexual relationships," the arguments could be repurposed into an opinion striking down all same-sex marriage laws.

One such passage was this one:

"DOMA tells 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."

Scalia then demonstrated how, with just a little redlining, the passage could be retooled to justify striking down state same-sex marriage bans:

"This state law tells those couples, and all the world, that their otherwise valid relationships are unworthy of state recognition. This places same-sex couples in an unstable position of being in a second-tier relationship.  The differentiation demeans the couple, whose moral and sexual choices the Constitution protects."

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Of course, we don't know that Justice Kennedy or any other member of the DOMA majority would really consider Scalia's hypothetical word substitutions to be inconsequential. In any case, Scalia's whole exercise might just be one of his overheated and vindictive rhetoric flourishes -- ritualistic keening not meant to be taken seriously.

On the other hand, Justice Scalia almost certainly knows a good bit about how Justice Kennedy feels about the big enchilada question. In deciding these two cases the justices have obviously discussed them in conference and circulated proposed opinions, dissents, and concurrences. Remember further that Justice Kennedy wanted to reach the merits in Perry -- he was among the dissenters who voted to do so -- so he may well have once spelled out his views on how that case should have been decided. It's even conceivable -- and, yes, this is really rank speculation—that the three excerpts from the Kennedy ruling that Scalia called out for special ridicule may have actually appeared in earlier drafts of an abortive Kennedy opinion intended for the Perry case, in which case Scalia's redlinings might not have been so hypothetical as they appear.

In any case, even if nothing so dramatic occurred, it's possible, and I think likely, that when Kennedy realized he wasn't going to get to write an opinion on the merits in Perry he at least imported into the DOMA ruling some of his thoughts bearing upon how cases like Perry should be decided.

How can I possibly say that? Kennedy's diction throughout his DOMA ruling (including the passages from it that Scalia quotes so bitterly) often evokes that of the briefs filed on behalf of the Perry plaintiffs (the same-sex couples eager to marry in California) more than that of the briefs filed on behalf of Edith Windsor, the plaintiff in the DOMA case.

Though there were important areas of overlap, Windsor's lead lawyer, Roberta Kaplan of Paul Weiss Rifkind Wharton & Garrison, could afford to be, and was, more prudent and craftsman-like in her arguments and less soaring in her rhetoric than plaintiffs counsel in the Perry case. The Windsor brief argued that DOMA, enacted hastily and without careful reflection, was not rationally designed to further any of its intended goals. Her brief argued that DOMA violated equal protection, by discriminating on the basis of sexual preference. It also contended, among other things, that DOMA's anomalous status in our federalist system of government -- representing, as it did, "an unprecedented [federal] intrusion into an area of traditional state regulation -- warranted "heightened scrutiny" under the equal protection clause.

In contrast, the Perry brief focused first and foremost on Prop 8's alleged trampling upon fundamental liberties guaranteed by the Due Process Clause. It gave that argument even higher priority than its arguments based on the Equal Protection Clause. The very first sentence of the Perry brief read, "This case is about marriage, 'the most important relation in life,' a relationship and intimate decision that this Court has variously described at least 14 times as a right protected by the Due Process Clause that is central for all individuals' liberty, privacy, spirituality, personal autonomy, sexuality, and dignity; a matter fundamental to one's place in society; and an expression of love, emotional support, public commitment, and social status."

Accordingly, the Perry brief, written by lead counsel Ted Olson of Gibson Dunn & Crutcher and David Boies of Boies Schiller & Flexner, emphasized the damage that Prop 8 -- whose definition of marriage is nearly identical to DOMA's -- inflicted on gay people's "dignity." While the Windsor brief did not mention "dignity" once, the Perry brief mentioned it eight times. Similarly, the Perry brief argued that Prop 8 demeaned gay couples by branding their committed relationships as "less worthy" (variants of this phrase were used four times) and "second-class" and "second-rate," terms that were, again, not employed in the Windsor brief.

Kennedy's majority ruling in the DOMA case was an amalgam of plaintiffs' arguments from both cases. (Hence, perhaps, Scalia's denunciation of the opinion as "scatter-shot," and an agglomeration of "disappearing trails" of "legalistic argle-bargle.") Kennedy relied on both the Due Process and Equal Protection Clauses, and he cited DOMA's anomalousness from a federalist perspective as a factor warranting its increased scrutiny under both clauses.

But the passages that infuriated Scalia most -- the broad arguments that, to him, seemed directly transposable to an attack on same-sex marriage bans per se -- were the ones that most resembled passages from the Perry brief.

Compare the passage Scalia excerpted from Kennedy's ruling and quoted above, for instance, to the following passages from the Perry brief:

"Proposition 8 engraved into California's constitution the cardinal principal that unions among gay men and lesbians are not valid or recognized as marriages, and therefore second-class and not equal to heterosexual marriages." [From page one. Or from page 54:] "[Withholding marriage] denies gay men and lesbians their identity and their dignity; it labels their families as second-rate."

In the end, Kennedy's majority ruling in Windsor mentioned "dignity" -- a watchword of the Perry brief and one absent from the Windsor brief -- 10 times, spoke of "worthiness" at least four times, and also employed, like the Perry brief, terms like "second-class" and "second-tier," which were, again, absent from the Windsor brief itself.

Assuming then, as Scalia suggests, that Justice Kennedy is ready to strike down all state same-sex marriage bans, the next logical question is: why didn't it happen? Why did three liberal justices -- Ginsburg, Kagan, and Breyer -- vote to dismiss Hollingsworth on standing grounds?

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One possibility, of course, is that they just happened to all feel very strongly about the standing issue presented in Perry, felt obliged to say so, and let the chips fall where they would, even if it meant postponing a landmark civil rights ruling for later day. But since each of these justices was able to vault over a high, if not higher, standing hurdle in the DOMA case, in order to reach the merits there, that's improbable.

More likely is that -- as chastening as it might seem to those of us who try to assign justices neat political pigeonholes -- they were actually more reluctant than Kennedy to issue a sweeping, disruptive ruling, overturning the laws of 38 states for simply having defined marriage as it had been defined since time immemorial up until about ten years ago.

Justice Ginsburg gave a speech in 2012 at Columbia Law School and another last May at the University of Chicago Law School in which she commented that while Roe v. Wade, the landmark abortion ruling of 1973, had not been "wrong," it had "moved too far, too fast." Her point was by striking down all abortion laws, instead of just the one before the court in that case, the Court galvanized opposition to legalization of abortion and undermined the momentum of state legislative reform movements that were already in the works.

Deeply discomfiting to many gay-rights advocates, because of its ominous foreshadowings vis-à-vis Ginsburg's vote in the same-sex marriage cases, her speeches received great attention in both liberal and conservative circles as the Perry and Windsor arguments approached. New York Times' Supreme Court reporter Adam Liptak summarized their significance here, while the Times editorial board repeatedly tried to persuade Ginsburg of the error of her thinking, here and here, relying in part upon a book co-authored by yet another Timesman, former Supreme Court reporter and current columnist Linda Greenhouse.

In the end, though, it appears that their efforts went for naught, and, in fact, that Ginsburg may have even prevailed upon Kagan and Breyer to see things her way.

If so, what would this all mean going forward? It would mean that the Court will dodge hearing (i.e., deny granting discretionary review over) any case requiring a full-frontal ruling on same-sex marriage bans for the next several years and, ideally, until at least half the states have legalized gay marriage. At that point, if the Court's composition is still roughly what it was last week, it will strike the remaining laws down.

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