The Chief Justice, in an opinion dissenting in Windsor, claims that the majority’s
opinion rests on federalism, and thus that it should lend support to the view
that state laws limiting marriage to opposite couples are constitutional. Rick Pildes (see below) in part agrees – arguing that the
opinion rests on the interrelated grounds of federalism and equal/protection
due process. In this reading, I believe both the Chief Justice and Professor
Pildes are mistaken. While the majority
in Windsor does spend considerable
time discussing the fact that federal intrusions into definitions of marriage
are unusual, this discussion is not made in support of a federalism rationale. Rather Justice Kennedy argues that “DOMA’s
unusual deviation from the usual tradition of recognizing and accepting state
definitions of marriage … is strong evidence of a law having the purpose and
effect of disapproval of [same sex couples].”
In other words, DOMA expresses that gay couples are second-class
citizens. How do we know that DOMA
stamps these couples as inferior? In
part, argues Justice Kennedy, because the federal government has gone out of
its way to intervene in an area normally left to states. Respect for federalism does not play any role
in justifying the decision. Rather, the
deviation from traditional practices here serves the function of making clear
that the federal action has the purpose and effect – or I would say the meaning
– of demeaning gay couples.
What does Windsor thus portend for the
constitutionality of state laws that restrict marriage to opposite sex couples? That will depend on whether a state law restricting marriage to opposite sex couples similarly demeans same-sex couples and their unions. Justice Kennedy might think that without the unusual action of the federal government reaching into state affairs, the meaning of a restrictive state law is less clear or less stigmatizing, so in a sense he hasn't committed himself to the view that state laws are also constitutionally infirm. However, Kennedy uses the word dignity (or indignity)
a total of 10 times in his fairly short opinion – signaling the importance of
an interest that he used to invalidate a Texas law criminalizing non-coital sex
in Lawrence v. Texas. DOMA demeans the dignity of same-sex couples
because it takes from them the status and respect that their own states have
conferred upon them in recognizing their marriages. If what matters is whether a law expresses
that same sex couples are inferior, it seems to me a relatively small step to
conclude that state laws limiting marriage to opposite sex couples should also
be found unconstitutional.