THE BLOG
06/28/2013 02:32 pm ET Updated Feb 02, 2016

A One-Two Punch to the Nation's Most Prominent Anti-Gay Laws

The Supreme Court's decisions in United States v. Windsor and Hollingsworth v. Perry, the first major gay rights rulings in a decade, are a one-two punch to the nation's most prominent anti-gay laws. With these decisions, the court has brought an end to the damage wrought by the federal Defense of Marriage Act (DOMA) on countless same-sex couples throughout the United States and left in place Proposition 8's invalidation by the federal district court.

Neither decision is surprising, but both are gratifying, and both reinforce the dramatic shift in the court's approach to gay rights -- and to gay people. Just over a generation ago, in the court's 1986 Bowers v. Hardwick ruling, it held that it was "at best facetious" that a gay person would have a constitutional right to sexual intimacy in his apartment. Today, Justice Anthony Kennedy, in his Windsor opinion, writes that DOMA's burden "demeans" same-sex couples and "humiliates tens of thousands of children now being raised by same-sex couples."

It was almost unimaginable when the gay rights movement took hold in the 1970s, or even as legal victories started to mount in the '80s and '90s, that the nation's highest court would find that a federal law unconstitutionally interfered with the "equal dignity of same-sex marriages."

Yet reaching this conclusion was not a constitutional stretch. Relying on a 40-year-old opinion striking down Congress' discrimination against hippies, the court had little difficulty finding illegitimate stigma in DOMA's "unusual deviation from the usual tradition" of the federal government accepting state definitions of marriage, as it struck down DOMA's section 3, which prohibited the federal government from recognizing same-sex couples' marriages.

Ironically, the very first time the court recognized that this equality guarantee protected gay people came in 1996 -- the same year of DOMA's passage -- when it struck down Colorado's anti-gay amendment. In essence, then, even when DOMA first arrived, the court's equality jurisprudence contained the seeds of its demise.

But if the change has come quickly in constitutional and political terms, it has been a long stretch of years for same-sex married couples who have lived under DOMA's discriminatory regime. The court's opinion makes these injuries plain.

In one small but notable snippet, the court even mentions that DOMA's injuries include a ban on same-sex married couples being buried together in veterans' cemeteries. Here, it is worth remembering that until September 2011, when Congress repealed "don't ask, don't tell" (DADT), gay and lesbian individuals could not even serve openly in the nation's military.

What is most striking about the opinion, though, is the direct, clear way that the court seems to understand why DOMA is such an egregious violation of the constitution's equality guarantee. Words like "demean," "degrade," and "humiliation" do not appear often in Supreme Court opinions in reference to unconstitutional laws. Yet the Windsor decision is replete with those words and more: "the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage." And again: "no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity."

Of course, DOMA's invalidation does not bring a full end to the problem of marriage discrimination against same-sex couples. For those who are legally married and in one of the 13 states that recognize their marriages (now including California), full marriage equality will be theirs to enjoy on the same terms as different-sex couples. For legally married same-sex couples outside those states, a new wave of challenges begins.

But, as the court also highlighted, the federal government can "regulate the meaning of marriage in order to further federal policy" even when the federal tradition is to defer to the states. Some equalization of federal marriage rights (in the military, for example) can come quickly through policy change and executive order; other changes need to come via agency regulation, which will be more time-consuming. Still, the Obama administration has already announced that it will implement DOMA's strikedown "swiftly and smoothly."

On Perry and Prop 8

In contrast to the Windsor decision, the tone of the Perry decision is straightforward. And, in my view, it is also absolutely correct. (My colleague Henry Monaghan and I filed a brief on this point.)

Here, the bottom line is that private parties cannot step in to defend the constitutionality of a state law when a state government has opted not to defend it. Most notable about the Perry opinion is its tone. A different opinion might have sounded more regretful about denying standing to Proposition 8's sponsors. But Chief Justice John Roberts' opinion did not do that, and its plain language, when read alongside the more dramatic language in the Windsor opinion, further underscores the sea change in the court's approach to gay rights claims.

In short, the outcomes here are both consistent with prevailing jurisprudence, and both are likely to be invoked in the future as marriage litigation continues into its next phase. More importantly, perhaps, the court's effusive, heartfelt invalidation of DOMA is consistent with the prevailing trend in the nation toward including gay people not only in marriage but in the country's greater promise of equality for all.

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