The Supreme Court's landmark ruling this week in U.S. v. Windsor invalidating Section 3 of the federal Defense of Marriage Act follows a path carefully forged by Justice Anthony Kennedy. Windsor marks the third time Justice Kennedy has authored a majority opinion in a groundbreaking gay rights case, and his reasoning makes clear that the prior two cases were not aberrations, as some had speculated.
Playing his usual role in dissent, Justice Scalia displayed his reliably pugnacious panache, expressing shock and outrage and claiming to be confounded while he proceeded to skewer the majority's rationales. But nothing about Justice Kennedy's approach should have come as a surprise to his fellow conservatives this third time.
In 1996, Justice Kennedy authored the majority opinion in Romer v. Evans, which invalidated Colorado's voter-approved constitutional amendment denying gays and lesbians protection from discrimination. In 2003, he wrote the majority opinion in Lawrence v. Texas, which invalidated the state's criminalization of same-sex sodomy. As you'll see, Justice Kennedy relies on the same major points in Windsor that he had developed in Romer and Lawrence.
Let's start with a brief overview of Windsor's major points. Justice Kennedy acknowledged (again) that our understanding of constitutional protection evolves as times change. He considered (again) how the law operates practically within social context to single out a small class of persons and impose a disability that has far reaching effects. He blended (again) principles of equality and liberty, with a dash of dignity. He ignored (again) the much-maligned tiers of judicial scrutiny. And he invalidated (again) a law that harms gays and lesbians. Now let's look at how each explanation in Windsor tracks Romer and/or Lawrence.
Times have changed, and that's exactly where Justice Kennedy began his examination of DOMA. He described states like New York as embracing "a new perspective, a new insight" that sees the denial of marriage to same-sex couples as "an unjust exclusion." Justice Kennedy linked these changes in society to related changes in constitutional interpretation, explaining that it is the community that has made changes to law to reflect "its evolving understanding of the meaning of equality." This echoes his analysis in Lawrence recognizing that society's "emerging awareness" understands liberty as entitling gays and lesbians to respect for their private lives. And it mirrors the respect for gays and lesbians he had first demonstrated in Romer.
Contrary to the urging of those who oppose same-sex marriage, Justice Kennedy also refused to see DOMA's denial of federal recognition as a minor inconvenience for same-sex couples. By looking instead at DOMA's practical operation within social and legal context, he took into consideration the broad reach of its restrictions on the lives of a small class of persons. As he succinctly put it, "DOMA writes inequality into the entire United States Code." Justice Kennedy had emphasized this same point when he characterized Colorado's denial of protection from discrimination as "imposing a broad and undifferentiated disability on a single named group," and also when he described Texas's criminalization of same-sex sodomy as imposing a "stigma" that was "not trivial." In all three cases, each law's broad impact on a narrowly targeted class revealed to Justice Kennedy that both its purpose and its effect were to demean gays and lesbians. This he will not tolerate.
Justice Kennedy also made clear in Windsor that DOMA simultaneously violates the protections of liberty and equality contained within the Fifth Amendment's Due Process Clause. Basically, the Fifth Amendment protects liberty and equality from federal interference to the same extent that the Fourteenth Amendment protects liberty and equality from state interference. In the two prior state cases, Romer was based on equality while Lawrence was grounded on liberty. But in Lawrence Justice Kennedy explicitly acknowledged the synergy between liberty and equality. Now, in Windsor, he simply refused to analyze them separately.
Nor did Justice Kennedy specify the standard of judicial review he was applying. He repeated a quotation from Romer that "discriminations of an unusual character" require "careful consideration." And he ultimately concluded, "The federal statute is invalid, for 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." As any constitutional law student knows, the reference to "no legitimate purpose" sounds like rationality review, while "careful consideration" sounds more like heightened scrutiny. No matter to Justice Kennedy. Just as he had in Romer, he simply elided the tired tiers that characterize judicial scrutiny as strict, intermediate, or rationality-based. He similarly avoided the standard formula for determining whether a right is fundamental, apparently finding no need to reach that analysis, just as he had done in Lawrence.
Because Windsor involved a federal law, unlike Romer and Lawrence, Justice Kennedy blended concern about federalism into the mix. But he was careful to specify that it was "unnecessary to decide" whether DOMA's intrusion on state power violated the Constitution's "federal balance." This denial that federalism was essential to the ruling appeared to be based on his acknowledgements that the federal government does have some limited authority to regulate marriage but only "to further federal policy," and that state power over marriage is not unlimited but "must respect the constitutional rights of persons."
Still, the spirit of federalism made appearances throughout the opinion, as Chief Justice Roberts emphasized in dissent. Justice Kennedy referred to DOMA's "unusual deviation" from the federal tradition of deferring to "state sovereign choices about who may be married." He eloquently characterized New York's decision to give same-sex couples the right to marry as conferring "a dignity and status of immense import" and enhancing "the recognition, dignity, and protection of the class in their own community." Then he explained, "What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect." Because he expressly refused to decide the case on federalism grounds, however, his reasoning in Windsor is not necessarily limited to the federal ban and could easily be applied to a state ban in the future.
Going forward, one pressing question will be whether the Constitution permits states to ban same-sex marriage. In its same-day decision in Hollingsworth v. Perry, the Supreme Court produced a similarly groundbreaking result by invalidating California's voter-approved "Proposition 8," which had amended the state constitution to ban same-sex marriage. But the majority did so only on the technical basis that the ballot initiative proponents did not have constitutional standing to appeal the invalidation of Prop 8 in lieu of state officials. As various cases challenging other state bans continue to wind through the judicial system, judges will grapple with interpreting the implications of Justice Kennedy's logic in Windsor. Lower courts similarly struggled over the years to interpret the seemingly renegade aspects of Romer and Lawrence. Not all of those judges showed Justice Kennedy due respect, as some openly declined to follow his reasoning.
Regardless of the critics, Justice Kennedy didn't jettison his approach. Three times now, he has insisted on extending constitutional protection to gays and lesbians and enhancing human dignity. So Romer, Lawrence, and Windsor are neither aberrations nor merely a trilogy. Together they comprise a legacy, a bequest to the future that has the potential to reshape how we interpret the Constitution for years to come.
Julie A. Nice is the Herbst Foundation Professor of Law at the University of San Francisco School of Law. She teaches and writes about constitutional law and sexuality law.