By Michael McGough
4:48 PM CDT, June 27, 2013
On Wednesday, the Supreme Court struck down a law that defined marriage for federal purposes as the union of one man and one woman. But what part of the Constitution did Section 3 of the Defense of Marriage Act violate? It’s surprisingly complicated.
Before this week’s decision, the conventional wisdom was that if Justice Anthony M. Kennedy wrote a majority opinion striking down Section 3 of DOMA, he would emphasize the states’ right to define marriage. This prospect troubled supporters of gay rights because it’s a double-edged sword. If Washington must defer to New York’s decision to legalize same-sex marriage, then it must also accept the decision of other states to limit marriage to male-female unions.
In Wednesday’s majority opinion, Kennedy did write at length about the prerogative of the states to define marriage. But then he said that “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution.” Instead, Kennedy said the state’s power to define marriage was relevant not for reasons of federalism but because “the state’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.” DOMA went astray because the law “seeks to injure the very class New York seeks to protect, [and by] doing so it violates basic due process and equal protection principles applicable to the federal government.” Kennedy then cited the Supreme Court’s decision in Bolling vs. Sharpe.
Bolling vs. Sharpe is a constitutional curiosity -- but an important one. It involved a challenge to racially segregated schools in the District of Columbia and was decided on the same day in 1954 as the more famous Brown vs. Board of Education. In Brown, the court held that segregated public schools in Kansas and other states violated the 14th Amendment, which says: “No state shall .... deny to any person within its jurisdiction the equal protection of the laws.”
But there was a problem: The 14th Amendment’s equal protection clause didn’t apply to the federal government, and the D.C. public schools were operated by a federal enclave. But the court struck down school segregation in the district anyway, on the theory, as Chief Justice Earl Warren put it, that “discrimination may be so unjustifiable as to be violative of due process.” And the 5th Amendment, which does apply to the federal government, says: “No person shall be … deprived of life, liberty, or property, without due process of law.”
Some critics see this fusion of due process and equal protection as a politically driven legal fiction, but the idea that the due process clause of the 5th Amendment contains an “equal protection" dimension is well established.
So is the problem with DOMA that it violates this (implied) equal protection guarantee? Partly, but elsewhere in his opinion Kennedy suggests that Section 3 might violate the 5th Amendment’s due process clause in other ways. As dissenting Justice Antonin Scalia noted, in writing that the Constitution protects the “moral and sexual choices” of same-sex couples, Kennedy cited the 2003 case Lawrence vs. Texas. That case, in which the court struck down a criminal law against same-sex sodomy, was a due process case, not an equal protection case. Scalia concluded that Kennedy’s justifications for the ruling were “rootless and shifting.”
That’s not completely fair. The idea that the 5th Amendment combines equality and due process goes back, as we saw, at least to 1954. (The syllabus of Kennedy’s opinion, a kind of executive summary, uses the term “equal liberty.”)
So why is Scalia so upset about Kennedy’s rationale? And why should anyone besides law nerds care about the precise constitutional basis of the decision as long as it turned out the right way?
Here’s why: By hinging the decision on the 5th Amendment rights of gay couples, rather than the states’ authority to define marriage, Kennedy (and the four liberal justices who joined his opinion) arguably laid the groundwork for a future decision striking down state laws against same-sex marriage. And by not being overly specific about whether Section 3 violated the implied equal protection clause of the 5th Amendment, Kennedy finessed the question of whether laws against same-sex marriage target a protected minority and thus must withstand “strict scrutiny” by the court -- issues that are crucial in equal protection cases. That too makes it easier for the court in the future to sweep aside state laws against same-sex marriage.
Scalia all but accused the majority of harboring such a hidden agenda. He said that “no one should be fooled; it is just a matter of listening and waiting for the other shoe” to drop. And when it does, look for another citation to a decision about black and white schoolchildren in the District of Columbia.
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