There were many possible paths to victory in both marriage equality cases decided by the Supreme Court today. The decisions in United States v. Windsor and Holingsworth v. Perry, represent the near-opposite ends of the spectrum. The holding in Windsor could not have been much stronger, effectively (though circuitously) furthering recognition of gay and lesbian Americans as a class and holding up to scrutiny laws that treat gay and lesbian Americans differently from straight people. The implications are huge, very likely pointing in the direction of an eventual ruling striking down state laws and constitutional amendments denying equal marriage rights. The good news about Hollingsworth is that it "did the job" in overturning California's Proposition 8, effectively reinstating the sweeping opinion of Federal District Court Judge Vaughn Walker striking down the state ballot initiative blocking marriage equality as unconstitutional. The Supreme Court did so by ruling that those representing supporters of Proposition 8 did not have standing, or the legal right to appeal the lower court decision. The Supreme Court did not reach the actual merits of the case, such as whether or not there is a constitutionally protected right to marriage equality or whether voters may rescind rights granted to a minority. But by reverting to the lower court decision, the justices left enforcement to two staunch marriage equality supporters: California Gov. Jerry Brown and Attorney General Kamala Harris.
For now, Windsor supplants Lawrence v. Texas as the most important gay rights decision handed down by the Supreme Court. In Lawrence, the court struck down state sodomy statutes using equal protection principles of due process. Until today's decision, there was much speculation as to just how far Justice Anthony Kennedy, and thus the Supreme Court, given its current makeup, would be willing to extent the notion of "equal protection" to gay and lesbian Americans. The equal protection clause is grounded in the 14th Amendment to the Constitution. It provides, in part, that no state shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." In the last century, the Supreme Court developed a three-tiered approach to the equal protection clause. Laws that apply generally to everyone are subject to a "rational basis" test, which means a state need only prove a basic, underlying, rational reason for a law to withstand an equal protection or due process challenge. An intermediate tier, applied mostly to laws based on gender, requires that laws treating classes subject to immediate scrutiny be "narrowly tailored to further a compelling government interest." The third category, normally applied to laws distinguished on race, is "strict scrutiny." Under "strict scrutiny," the requirements of "intermediate scrutiny" must be applied as well as proof that "no less restrictive" means to accomplish the same goal are available.
Like Lawrence, Windsor does not specifically assign gay and lesbian Americans a specific equal protection category. In fact, the ruling struck down DOMA under the 5th Amendment's guarantee of a right to "equal liberty" and "due process." The opinion first cites federalist principles in reserving state power to regulate marriage, then goes on to apply "due process and equal protection" principals although never specifically invoking the 14th Amendment. The holding is significant in that, while again passing on the opportunity to assign gay and lesbian Americans to a specific class of protection, it effectively recognizes gay and lesbian Americans as a class and advances the possibility of equal protection assertions in future cases. By reading Justice Kennedy's decision, his intention is seemingly obvious:
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.
Although the Fifth and 14th Amendments serve different purposes, both apply to the federal government and the states. While there seems to be a reservation on the part of Justice Kennedy to "go all the way" by assigning heightened scrutiny to laws applying to gay and lesbian Americans, it is equally apparent that he believes equal protection principles apply. Otherwise, his ruling could have rested solely on federalist grounds, reserving marriage recognition as strictly a matter for states to define. Going forward, it is not a stretch to see Justice Kennedy applying equal protection principles to state statutes and constitutional amendments denying recognition to marriages between people of the same gender.
The victory in Hollingsworth is a textbook case of two axioms: "District court judges matter," and, "Elections matter." It is curious to hear anti-marriage-equality forces trying to "salvage" the day by promoting the notion that the Supreme Court did not find a constitutional right to same-gender marriages. Justice Kennedy's Windsor decision strongly suggests a court majority is there. The court did not address the issue simply because of basic principles of standing, or who has a right to represent whom or what. Standing is an essential hurdle for any litigant seeking to challenge a statute or constitutional provision. In California, the governor and attorney general are the designated parties to actions against the state. They alone decide whether to defend state statutes or constitutional provisions in court. An exception is made for "injured parties," meaning that if a citizen can prove he or she is adversely affected by the decision of the governor or attorney general not to defend or challenge state law, that citizen (or class of citizens) may take the place of the governor or attorney general in any litigation. Chief Justice John Roberts' decision makes clear that the parties defending Proposition 8 had no injury and, therefore, no standing to take the place of the governor or attorney general. This is significant because it underscores that the Supreme Court (even three of its most conservative members) did not buy into the notion that heterosexual couples or opponents of marriage equality somehow suffer "injury" by the state re-instituting marriage equality.
It is also important to note that the factual findings and decision of Judge Walker have proven to be critical to the restoration of marriage equality in California. Had a different district court judge ruled in the other direction, Proposition 8 opponents (marriage equality advocates) would have had to appeal to the Appellate Division. If the state of California had refused to defend Proposition 8 under that scenario, today's decision by the court would have reinstated an adverse district court opinion that would not have restored marriage equality to California. Equally relevant were the decisions of then-Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown's decisions not to appeal the district court decision, followed by the same decisions of current Gov. Jerry Brown and Attorney General Kamala Harris. This, of course, leaves open the question as to whether the Supreme Court would have ruled favorably on the merits had the case been appealed by a party with standing. However, the final decision to enforce Judge Walker's decision lies with Gov. Brown and Attorney General Harris, two reliable partners in the fight for marriage equality.
The fight for equality in 37 other states continues. But we now have clear direction that the Constitution, in addition to the political process and changing attitudes of the general public, are coalescing in favor of marriage equality across the entire country.