You know that someone has bad news to relate when he begins by saying, “well, it could have been worse.” That is what the defenders of conjugal marriage are saying after the brace of Supreme Court rulings issued yesterday on challenges to that truth that is as old as the human race, that marriage is between a man and a woman. The net effect of the rulings is further damage to marriage, and to the power of the law to uphold the truth about it.
But, well, it could have been worse. In the case widely recognized as the more pivotal of the two, Hollingsworth v. Perry, in which a claim was squarely asserted that same-sex couples have a federal constitutional right to be married anywhere in the country, the majority of the justices decided not to decide. The California officials responsible for implementing Proposition 8 (the people’s amendment restoring the conjugal definition of marriage to the state constitution in 2008) would not defend it in federal court, and so the private parties responsible for proposing and campaigning for Prop 8 had to do so.
Now, after defending Prop 8 at trial in U.S. district court, and in the Ninth Circuit, and in arguments to the Supreme Court, the proponents of the amendment have been told they lack standing to appeal the adverse trial ruling. The Supreme Court ordered the Ninth Circuit’s ruling vacated, with instructions to dismiss the appeal. What the correct legal status now is of Judge Vaughn Walker’s bizarre district court ruling is an interesting question. But it is difficult to see any practical outcome that prevents the return of same-sex marriage to California, which had it for five months before the passage of Prop 8.
The Hollingsworth case had the most unusual line-up of justices on either side: Chief Justice Roberts for the majority, joined by Justices Scalia, Ginsburg, Breyer, and Kagan; and Justice Kennedy dissenting, joined by Justices Thomas, Alito, and Sotomayor. It is difficult to perceive any chessboard maneuvering that resulted in such a split. The decisions of the justices to range themselves on one side or the other seem to have been based purely on the standing question taken by itself, with no one positioning himself in order to prevent a ruling on the merits for fear of losing.
There is much to be said, for instance, on behalf of Justice Kennedy’s complaint that the decision deprives the people of California of the right to govern themselves by referenda, if the losers of a plebiscite can challenge the outcome and, with the collusion of friendly state officials unwilling to defend the people’s will, win in court what they cannot win at the ballot box. But one cannot tell, at least from this opinion of Kennedy’s, where he would have been on the merits he thinks the Court should have taken up.
By the same token, one can tell, from Chief Justice Roberts’ dissent in United States v. Windsor (on the Defense of Marriage Act), that he almost certainly would have voted in Hollingsworth to uphold Prop 8 if the merits had been reached. But he was willing to hold—insisted on holding, for plausible reasons—that the role of a referendum proponent does not confer standing to represent the constitutionality of state law in federal court. And so he led a majority that frustrated the democratic process in California, and signaled new risks for such processes in the 26 other states that use the popular initiative. But that majority at least—it could have been worse!—declined to constitutionalize a spurious “right” to same-sex marriage.
It was in the less explosive, but still volatile Windsor case that the Court reached the merits, but only after considerable wrangling here too about whether DOMA could be defended in federal court by counsel retained by the House of Representatives, after the Obama administration withdrew from a legal defense of the act in court. (What is it about the cause of same-sex marriage that prompts so many of its advocates in the political class to abdicate the most elementary responsibilities enjoined by their oaths of office?) Chief Justice Roberts and Justices Scalia and Thomas would have held that in Windsor too there was no case for the Court to decide, and were thus willing to see DOMA’s challenged Section 3, enacting a federal-law definition of marriage, fall prey to an interbranch political struggle in which the president has the upper hand over Congress.
But the Windsor majority led by Justice Kennedy—which included Justices Ginsburg, Breyer and Kagan, who curiously saw a party with standing here, where they did not see one in Hollingsworth—went to the merits and overturned DOMA’s Section 3. The opinion was of a kind we are used to seeing by now from Justice Kennedy: long on windy rhetoric about “dignity” and ad hominem attacks on the basic human decency of the law’s defenders, and short on actual coherent legal reasoning from recognizable constitutional principles.
On the one hand, the ruling seems to turn on the fact that some states have recognized same-sex marriage as valid, and that some “tradition” of federalism requires the federal government to conform itself to whatever the states say about marriage. On the other hand—perhaps because nothing really in the Constitution establishes such a norm of federalism for courts to enforce—Kennedy turns to a fuzzy “equal liberty” claim derived from the due process clause of the Fifth Amendment. This peculiar species of what is known as “substantive due process” assimilates that clause to the standards used under the equal protection clause of the Fourteenth Amendment, and carries all sorts of borrowed baggage from the latter about “levels of scrutiny.”
But Justice Kennedy could not be bothered with sorting out just which level of scrutiny should apply, or how the Court’s Fifth and Fourteenth Amendment precedents on equality bore on the case at hand. He resorted instead to the fallacy of the argumentum ad misericordiam, a fallacy he magically redoubled with a non sequitur. The argument is that for those same-sex couples married under state law but disadvantaged under DOMA’s Section 3 non-recognition of their marital status under federal law, the chief injury they suffer is hurt feelings, a “dignitarian” harm. It follows—for Justice Kennedy, who has his own private logic—that it must have been the motive of the legislators who passed DOMA to hurt their feelings (never mind that such questions of motive are not supposed to dispose of constitutional questions). Therefore—again, if you are Justice Kennedy it’s a “therefore”—DOMA’s Section 3 is based on “animus,” and that alone is sufficient to invalidate it.
Justice Kennedy’s Windsor opinion on the merits deserves all the scorn heaped on it by Justice Scalia’s dissent, as well as all of Justice Alito’s penetrating observations in his separate dissent that “what is marriage?” is the key question, which the people and their representatives are entitled to decide for themselves, in Congress and in the states. Kennedy’s opinion is as shabby and question-begging as they say—and then some—but the real danger lies in its contemptible contempt for the millions of Americans who disagree with a “progressive” redefinition of marriage that severs its connection to childbearing, mothering, and fathering.
Yet let us remind ourselves that for now, Section 2 of DOMA is intact, preserving the right of states not to recognize same-sex marriages contracted in other jurisdictions. And the right of states to control, by their own political processes, what marriage means under their own laws is still intact too. It will now be easier for the adversaries of the conjugal meaning of marriage to mount challenges to state laws, and to what remains of DOMA. The appalling rhetoric of Justice Kennedy gives those adversaries fresh ammunition in the battle.
But the battle continues, and for people who have faith in the truth, despair is never an option. Yes. It could have been much, much worse. We have a lot of work ahead of us.
Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.