David Adler: Same-sex rulings promote equality and state authority ... for now


In a bow to federalism and state powers, the Supreme Court rendered two key rulings of historic significance that promote same-sex marriage and the principle of equal rights, the beacon light of liberty in America. The court certainly did not raze the barriers to marriage equality; indeed, it did not even address the issue of the definition of marriage. But its reasoning and elevation of personal liberty mark the road it is traveling. A constitutional right to same-sex marriage is the destination.

The Prop 8 Case, Hollingsworth v. Perry, reflected judicial deference to state choices. The court rejected the argument that private parties may defend the constitutionality of a state statute where "state officials have chosen not to." The ruling cleared the way for same-sex California couples to marry, a huge victory for the gay rights movement. Score one for assertions of state power.

The second case, United States v. Windsor, carries nationwide implications. The court's 5-4 ruling struck down the repressive portions of the Defense of Marriage Act that denied federal benefits to same-sex couples whose marriages were recognized by state law. As Justice Anthony Kennedy explained in the opinion for the court, DOMA had relegated same-sex marriages to the "second tier," rendering them unequal. A federal definition of marriage that creates "two contradictory marriage regimes within the same state," he wrote, "must fall."

Kennedy's opinion represented another victory for state authority to define marriage. DOMA had interfered with state powers by granting federal benefits to some married couples, but not others. As a consequence, the statute had violated the principle of equal protection by creating an unequal subset of marriages, which were disparaged as "unworthy of federal recognition."

In language that will resonate in forthcoming judicial decisions on same-sex marriage, Kennedy took the measure of DOMA: "This demeans the couple, whose moral and sexual choices the Constitution protects, and it humiliates the tens of thousands of children now being raised by same-sex couples."

What does this mean for states like Idaho that define marriage as a union between a man and a woman? Will Idaho be able to defend its rationales for traditional marriage in light of Kennedy's expressions of harms and injuries? Chief Justice John Roberts and Justice Antonin Scalia disagreed on the implications of Kennedy's reasoning and language.

Roberts was correct, at least technically, that the court had not addressed the issue of the definition of marriage.

Scalia argued, however, that the majority had tipped its hand, and that it was just a matter of time "before the other shoe dropped."

The court's rulings have reaffirmed state authority to govern marriage. But state powers, like federal powers, are limited, and state laws that define marriage will be examined in light of equal protection principles.

These decisions on same-sex marriage will remind a nation, conscious of its history, of the dark days of racial discrimination that were overcome by Supreme Court decisions that championed the principles of due process and equal protection.

Race discrimination, like gender discrimination, has had its reckoning in the Supreme Court. Equal protection principles won't tolerate discrimination on the basis of race or gender. Someday, and perhaps soon, the court will exalt equal protection against state prohibitions on same-sex marriage.

Adler holds appointment as the Cecil D. Andrus Professor of Public Affairs at Boise State University where he serves as director of the Andrus Center for Public Policy. He has lectured nationally and internationally on the Constitution, the presidency and the Bill of Rights, and is an adjunct professor of law at the University of Idaho College of Law, where he teaches courses on the Constitution and the Supreme Court.

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