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Supreme Court Declares Gays a Protected Class

gay-lesbian-symbols

Doug Mataconis has already broken down today’s landmark gay rights rulings in some detail in “Supreme Court Strikes Down DOMA, Dismisses Prop. 8 Appeal For Lack Of Standing.” But the sweeping nature of the first ruling is worthy of further comment.

Justice Kennedy’s opinion in Windsor is far more sweeping than I would have predicted. I was expecting DOMA to be struck down on the basis on that it’s a state issue and that the Full Faith and Credit Clause trumped any statute. That would not only have been largely uncontroversial but have had no practical impact, since the Obama administration isn’t enforcing the law anyway.

Instead, the five justices in the majority have made sexual orientation a full-fledged protected class under the 5th (and presumably 14th) Amendment. That is indeed truly historic.

After quite a lengthy explanation as to why they have jurisdiction to rule in the case, Kennedy explains,

2. DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. Pp. 13-26.
(a) By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States. Congress has enacted discrete statutes to regulate the meaning of marriage in order to further federal policy, but DOMA, with a directive applicable to over 1,000 federal statues and the whole realm of federal regulations, has a far greater reach. Its operation is also directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect. Assessing the validity of that intervention requires discussing the historical and traditional extent of state power and authority over marriage.

Subject to certain constitutional guarantees, see, e.g., Loving v. Virginia, 388 U. S. 1, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States,” Sosna v. Iowa, 419 U. S. 393, 404. The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States,” Ohio ex rel. Popovici v. Agler, 280 U. S. 379, 383-384. Marriage laws may vary from State to State, but they are consistent within each State. DOMA rejects this long-established precept. The State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. But the Federal Government uses the state-defined class for the opposite purpose—to impose restrictions and disabilities. The question is whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment, since what New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect. New York’s actions were a proper exercise of its sovereign authority. They reflect both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality. Pp. 13-20.

(b) By seeking to injure the very class New York seeks to protect, DOMA violates basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528, 534-535. DOMA cannot survive under these principles. Its unusual deviation from the tradition of recognizing and accepting state definitions of marriage operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of a class recognized and protected by state law. DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

DOMA’s history of enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. BLAG’s arguments are just as candid about the congressional purpose. DOMA’s operation in practice confirms this purpose. It frustrates  New York’s objective of eliminating inequality by writing inequality  into the entire United States Code. DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. Pp. 20-26

I haven’t had a chance, and am unlikely to have one for a while, to read beyond the lengthy summary. But Kennedy and the four liberal Justices have clearly issued a more sweeping ruling than they need to. Indeed, they make the states’ rights argument almost a subset of the larger Equal Protection argument. This would seem to set a rather powerful precedent that goes beyond the narrow question of marriage.

 

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. PD Shaw says:

    I think the headline is incorrect. The majority purported to use rational basis review. Also, if they wanted a broader decision they could have also struck down the provision in DOMA recognizing a each state’s right not to recognize the validity of another state’s same-sex marriage.

    Like or Dislike: Thumb up 9 Thumb down 0

  2. al-Ameda says:

    But Kennedy and the four liberal Justices have clearly issued a more sweeping ruling than they need to. Indeed, they make the states’ rights argument almost a subset of the larger Equal Protection argument. This would seem to set a rather powerful precedent that goes beyond the narrow question of marriage.

    Interesting and not without irony. Within 24 hours Justice Kennedy ruled to sweep away one of the most important civil rights legislation of the 20th century – voting right protections secured by the federal government – and then ruled to protect gay rights under the auspices of the 14th Amendment.

    Like or Dislike: Thumb up 9 Thumb down 1

  3. James Joyner says:

    @PD Shaw: It’s been a while since I’ve read the opinions of the previous cases striking down sodomy laws. But I don’t recall anything like this sweeping language in any of those cases. Indeed, within the last decade or so, they were still upholding blatant anti-gay discrimination.

    On the other hand, I don’t see the words “strict scrutiny” in this part of the opinion.

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  4. David in KC says:

    I haven’t had the chance to read the opinion, but was watching SCOTUSBLOG a d seem to remember something about Scalia criticizing the majority for not using a rational basis review

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  5. Ben says:

    @David in KC:

    I just got done realing the opinion, and Scalia criticized them for not stating exactly WHAT level of basis they are using, although he concedes that it’s something less deferential to Congress than rational basis.

    The closest thing the majority comes to stating a test is “‘[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’”

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  6. RaflW says:

    My quick thought is: conservatives created this. By pushing their discriminatory animus so far they in effect codified their despising ways and that forced this reaction that you characterize as more sweeping ruling than needed.

    In other words, actions have consequences, which I think is a fairly conservative precept. And this time, treating gays like crap in the eyes of secular law has prompted a reaction. One that is “sweeping” because the previous swing was so far from just.

    Like or Dislike: Thumb up 10 Thumb down 9

  7. RaflW says:

    @PD Shaw: That would have been very dramatic, given that Section 2 wasn’t part of the case brought. I suppose they could have overturned S.2 but wow would that have been a controversial reach.
    I think S.2 is problematic (states recognize each other’s actions on all manner of things but this one? On what basis?), but it needs to be brought as its own case, not glommed onto a case that didn’t challenge it.

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  8. HarvardLaw92 says:

    @PD Shaw:

    Also, if they wanted a broader decision they could have also struck down the provision in DOMA recognizing a each state’s right not to recognize the validity of another state’s same-sex marriage.

    That issue wasn’t before the court.

    That said, the reasoning in Windsor does, IMLO, put Section 2 in an untenable position. I expect that suits challenging it will be brought very shortly now that SCOTUS has effectively handed potential litigants the firepower to pursue them.

    Like or Dislike: Thumb up 4 Thumb down 0

  9. PD Shaw says:

    @RaflW: Courts throw out entire laws when they find their purpose inappropriately discriminatory even if only one section is before them.

    But I agree that it would be extraordinary here because no small part of the majority opinion is a state’s rights case for which different considerations might apply to the provision involving states. Or to put it another way, if a majority of the Court believed that same-sex orientation is a protected class, then there is no reason that a state could discriminate against them in a way that the federal government cannot. If anything, the protections against state discrimination are stronger than against the federal government.

    Like or Dislike: Thumb up 0 Thumb down 1

  10. HarvardLaw92 says:

    @al-Ameda:

    and then ruled to protect gay rights under the auspices of the 14th Amendment.

    Small correction – 5th Amendment. The 14th Amendment governs state actions. Windsor was decided based on the presumptive equal protection grant of the Due Process clause of the 5th Amendment.

    Like or Dislike: Thumb up 2 Thumb down 0

  11. HarvardLaw92 says:

    @RaflW:

    I think S.2 is problematic (states recognize each other’s actions on all manner of things but this one? On what basis?)

    It’s problematic because it creates a situation where states recognize some marriages from other states, but not others from those same states. IMLO it sets up a 5th Amendment equal protection challenge to Section 2 predicated on the reasoning in Windsor. The federal government can’t impose conditions on full faith & credit which violate equal protection. Section 2 does.

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  12. stonetools says:

    Haven’t read the opinion, but I think the majority felt that DOMA failed even on rational basis grounds. Scalia (and the minority) felt that DOMA should be upheld on grounds that it expressed moral disapproval. Kennedy doesn’t think moral disapproval is an acceptable rational basis for a statute. That was enough to put Kennedy in the majority.

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  13. James Joyner says:

    @RaflW: I’m not criticizing the ruling; I think it’s right. I simply note that, given the narrow majority, I expected it to be struck down on narrower grounds. Equal Protection means things that states’ rights doesn’t.

    @HarvardLaw92: Yes, but it would be odd, indeed, to rule that the 5th Amendment makes it illegal for Congress to discriminate against gays but that the exact same language in the 14th Amendment is silent as to whether states may do so. Aside from the 2nd Amendment, what significant protection hasn’t been incorporated via the 14th?

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  14. HarvardLaw92 says:

    @James Joyner:

    Yes, but it would be odd, indeed, to rule that the 5th Amendment makes it illegal for Congress to discriminate against gays but that the exact same language in the 14th Amendment is silent as to whether states may do so.

    Exactly. Their ruling in Windsor creates a box for them with respect to the 14th Amendment & state actions regarding SSM. They dismissed based on standing, IMO, to avoid a ruling that would have been inevitable had they reached the merits in Hollingsworth.

    The bottom line, IMO, is that they decided that it’s too early to push a sweeping ruling across all 50 states, so they found a way to (temporarily) deflect the issue. California, in that regard, screwed gays everywhere else by refusing to defend Prop.8. It set up the exit door for SCOTUS to take.

    I suspect that we’ll be seeing a new wave of cases challenging state level bans in states that will chomp at the bit to defend them. I think it’s not so much a case of IF these state level bans fall as WHEN. I’m staying tuned.

    Aside from the 2nd Amendment, what significant protection hasn’t been incorporated via the 14th?

    Not much. McDonald incorporated the 2nd. The 3rd Amendment has only been incorporated in the 2nd Circuit. The 5th Amendment right to indictment by a grand jury hasn’t been incorporated at all. Likewise the 6th Amendment right to a jury selected from the residents of the state & district where the crime occurred, the 7th Amendment right to a jury trial in civil cases, possibly the 8th Amendment protection against excessive bail and the protection against excessive fines.

    Like or Dislike: Thumb up 4 Thumb down 0

  15. HarvardLaw92 says:

    The interesting thing, from my perspective, will be the toss-up of whether the state level bans are nullified in practice (by an overturn of Section 2) or in fact (by an affirmative 14th Amendment ruling predicated on the reasoning in Windsor being applied to the states.)

    After all, if Section 2 falls, state level bans are essentially meaningless in practice. Who cares if Montana (as an example) bans SSM if all that Montanans have to do to get around that ban is to hop on a plane to NY for the day, get married, and then return home demanding that Montana recognize their NY marriage?

    Like or Dislike: Thumb up 7 Thumb down 0

  16. al-Ameda says:

    @HarvardLaw92:

    Small correction – 5th Amendment. The 14th Amendment governs state actions. Windsor was decided based on the presumptive equal protection grant of the Due Process clause of the 5th Amendment.

    Right you are – thanks for the correction.

    Like or Dislike: Thumb up 1 Thumb down 0

  17. Scott says:

    I think this will have sweeping impact on the implementation of including same-sex marriages in the area of federal benefits and regulations.

    Example: Just out from DoD:

    The Department of Defense welcomes the Supreme Court’s decision today on the Defense of Marriage Act. The department will immediately begin the process of implementing the Supreme Court’s decision in consultation with the Department of Justice and other executive branch agencies. The Department of Defense intends to make the same benefits available to all military spouses — regardless of sexual orientation — as soon as possible. That is now the law and it is the right thing to do.

    Like or Dislike: Thumb up 3 Thumb down 2

  18. Caj says:

    Great day for the LGBT community. It’s 2013 not 1776 anyway. People must change with the times as time stands still for no man.

    Like or Dislike: Thumb up 0 Thumb down 1

  19. Gromitt Gunn says:

    @Scott: Yep. The Federal Government just became a much more attractive employer to people in, or wishing to be in, a same-sex marriage.

    Like or Dislike: Thumb up 1 Thumb down 2

  20. HarvardLaw92 says:

    @HarvardLaw92:

    Note: Yes, I’m aware of the comity arguments with respect to public policy exceptions. The underlying point is that it tees up the challenge to state level bans based on animus. It’s a segue into invalidating the premise on which the public policy exception is predicated.

    Like or Dislike: Thumb up 2 Thumb down 2

  21. @al-Ameda:

    Justice Kennedy ruled to sweep away one of the most important civil rights legislation of the 20th century – voting right protections secured by the federal government

    Or not, since there’s no law that was prohibited yesterday but that is allowed today. All that’s changed is the procedure for challenging those laws. And if the former procedure is so critical that the people living in the nine affect have lost “one of the most important civil rights”, does that mean the unfortunate inhabitants of the other 41 states have never enjoyed such protection?

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  22. Robert in SF says:

    Is this correct? I thought that President Obama’s administration was enforcing it.

    From the original article (emphasis added):

    Justice Kennedy’s opinion in Windsor is far more sweeping than I would have predicted. I was expecting DOMA to be struck down on the basis on that it’s a state issue and that the Full Faith and Credit Clause trumped any statute. That would not only have been largely uncontroversial but have had no practical impact, since the Obama administration isn’t enforcing the law anyway.

    Like or Dislike: Thumb up 1 Thumb down 1

  23. superdestroyer says:

    Homosexuals have proven that they are at the top of the poltically correct pecking order. After Supreme Court ruling that have taken political power away from blacks and Hispanics, the homosexuals get everything they want.

    I wonder if this is due to the massive wealth and affluence present in the homosexual community and their access to opinion makers and politicians has paid off.

    Of course, the question for the future is what will the liberal homosexual community will do with their growing power. How soon will they go after tax exempt status of groups that they do not like? How soon will they have the census bureau collect data on sexual orientation for lawsuit purposes?

    Like or Dislike: Thumb up 4 Thumb down 4

  24. JohnMcC says:

    I am heartened and pleased with the impact of today’s gay rights decicions (yesterday’s actually, I see I’m up into the wee hours). But I have a legal question that someone here perhaps could answer. Based on Justice Kennedy’s opinion quoted by Dr Joyce above, the 5th Amendment contains a guarantee of equality — meaning, I’m sure, equality in treatment by government and/or the courts.

    Now, I know very little about the body of the law but I feel like I know a bit about the history that led to the Constitution and about it’s actual text, and I didn’t know that the 5th guaranteed equality. I’d thought that was attributed to the 14th. And, looking into this a bit, I see that both 5th and 14th contain virtually identical language that guarantees ‘due process’. I found out there is ‘procedural’ and ‘substantive’ due process. But ‘due process’ seems to be mostly about the rights of defendants, to open hearing prior to passing of laws — esp taxes, to call witnesses, to representation and such.

    But before the 14th passed in 1868, the 5th had a life of almost 80 years during which the states obviously treated people differently in regards to their rights. It was the passage of the 14th, to safeguard the Civil Rights Act of 1866 and using virtually the same language as the 5th on the subject of ‘due process’ that required the states to treat all Americans equally.

    Now, obviously, Justice Kennedy knows the 5th & 14th amendments and their judicial history in a way that I can never dream of. Can someone here (?Mr HarvardLaw, ?Dr Joyner) help me understand what I’m missing by not seeing a necessary connection between ‘due process’ in the 5th and ‘equality’?

    Like or Dislike: Thumb up 2 Thumb down 0

  25. Xenos says:

    @superdestroyer:

    Homosexuals have proven that they are at the top of the poltically correct pecking order. After Supreme Court ruling that have taken political power away from blacks and Hispanics, the homosexuals get everything they want.

    Whine, whine, whine.

    Gay people came out of the closet and most people, who are not bigots, realized it was no big deal. So opinions shifted and what is done is done. This did not take anything away from blacks and hispanics – those communities have gay people, too.

    Like or Dislike: Thumb up 3 Thumb down 5

  26. superdestroyer says:

    @Xenos:

    The point is than in a week where Hispanics and blacks lost political power (losing mildly on affirmative action and massively on voting rights pre-approvement, homosexuals scored a total victory.

    The Supreme Court rulings this week are a clear sign that homosexuals are the most powerful special interest group in the U.S. probably because they are so affluent and politically connected versus all other special interest groups.

    Like or Dislike: Thumb up 3 Thumb down 3

  27. sam says:

    Why, hell, it seems only yesterday that Supe was claiming that Loving v. Virginia showed that interracial married couples composed the most powerful special interest group in the US.

    Like or Dislike: Thumb up 2 Thumb down 2

  28. HarvardLaw92 says:

    @JohnMcC:

    help me understand what I’m missing by not seeing a necessary connection between ‘due process’ in the 5th and ‘equality’?

    The Due Process clause of the 5th Amendment is held to mandate an implicit guarantee of equal protection of the laws. It’s one of the concepts that, while they are not explicitly addressed by the Constitution, are held by the court (i.e. the Supreme Court) to be implicit in the structure of the guarantees that are explicitly addressed.

    Due process secures equality of the law in the sense that that it makes a required minimum of protection for everyone’s right of life, liberty and property, which Congress may not withhold. The entire basis, in fact (if not always in practice) of our legal system is predicated on the fundamental principle that the laws must be equally applied, and must therefore equally protect, every citizen.

    Perhaps the court’s ruling in Bolling v. Sharpe, which established the reverse incorporation of the 14th Amendment’s explicit guarantee, can explain it better than I have:

    The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The ‘equal protection of the laws’ is a more explicit safeguard of prohibited unfairness than ‘due process of law,’ and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.

    Although the Court has not assumed to define ‘liberty’ with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.

    In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.

    Hope that helps

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  29. Tyrell says:

    @al-Ameda: Yes – the Supreme Court seemed to throw one minority under the bus while giving the farm away to a much smaller minority. It really has to sting since most surveys have shown that a larger majority of blacks have opposed gay marriage and do not like them comparing their movement to the civil rights movement of the ’60’s.

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  30. john Galt says:

    With all due respect, you obviously have no idea what you are talking about. “Conservatives” didnt cause this by treating homosexuals a certain way. Throughout the history of mankind, homosexuality has always been treated as deviant and wrong by all societies. It was never a conservative or a liberal thing. All cultures have looked down upon it and considered it wrong. Even cultures who looked favorably upon homosexual sex, never took the radical step to change marriage from between a man and a woman.

    There are very good reasons for this too. None of which will ever make sense to someone who “feels” that homosexual marriage is right and that proponents of it are more enlightened than those who are against it. Even worse, advocates of homosexual marriage have no idea of or care for the consequences. What the Supreme Court did here was to ignore it’s own test (developed through case law) to determine whether or not a group of people comprises a protected class, and simply declared that homosexuals are a protected class in order to reach a pre-determined result.

    Welcome to tyranny of the minority and the judiciary. It’s all fun and games when it is going your way, but an inexorable truth is that the pendulum never swings just one way. Everyone should be against this to maintain the structural integrity of the system. Instead, low information voters cheer because “they” won, probably because of the electrolytes.

    Like or Dislike: Thumb up 9 Thumb down 3