A Gay Marriage Muddle

A Gay Marriage Muddle

The Wall Street Journal (US).   [Editorial].      27/06/2013.            

The Supreme Court didn't propound another Roe v. Wade on Wednesday and discover a constitutional right to gay marriage, but it did take a major step toward it. The saving grace for democratic consensus and self-government is that the marriage debate can now continue in the states, if our judges will allow it.

That's our reading of two 5-4 rulings that saw the High Court range from its most restrained to aggressive activism in overturning the Defense of Marriage Act (Doma), a federal law defining marriage as between a man and a woman. Lower courts will be sorting out the mess for years.

The restraint came in Hollingsworth v. Perry, where the Court was asked to issue a judicial edict expanding traditional one man-one woman unions to include gays and lesbians for all 50 states under the Fourteenth Amendment's guarantee of equal protection. A 5-4 odd-couple majority led by Chief Justice John Roberts and including Justices Elena Kagan and Antonin Scalia ruled the plaintiffs had no standing to sue and so made no judgment on the merits.

This amounts to a punt on the right to gay marriage, which is certainly better than a mere five Justices imposing such a command on the entire country. The lower court decision and thus gay marriage will now prevail in California, but it won't apply anywhere else. The price of this restraint, however, may be to weaken the power of voters to challenge court decisions in referendums.

Proposition 8, a 2008 California ballot initiative, overturned a state supreme court decision legalizing same-sex marriage. A district judge then overturned the ballot initiative, and state officials refused to appeal. The case was then taken up by the private citizens who promoted Prop 8. The High Court's decision that those citizens lacked standing to sue means that a Governor could frustrate the will of voters by shopping for amenable judges and then denying any meaningful court challenge.

A different Court majority leapt in the opposite direction in the 5-4 ruling written by Justice Anthony Kennedy in U.S. v. Windsor, which overturned Doma. Section 3 of that 1996 law signed by Bill Clinton adopted the traditional definition of a spouse for federal purposes like taxes and Social Security.

Our view is that Doma was an understandable political response at the time to state court rulings on gay marriage, and adopting a uniform federal rule was a temporary solution as states experimented with new arrangements and a social consensus evolved. Congress was always free to revise Doma later.

But the majority overturned Doma with a confusing combination of logic that mixed principles of federalism with language about equal protection. On the one hand, Justice Kennedy and the four liberal Justices called Doma an illegal federal intrusion on the traditional state power to regulate marriage. On the other hand, they also described Doma as motivated by animus toward gay couples that violates the federal guarantee of equal protection.

The High Court's equal protection jurisprudence typically applies a different level of constitutional protection to discriminatory laws, known as strict or heightened scrutiny. Other laws are merely evaluated using a "rational basis" test. But Justice Kennedy never even mentions this basic question. He then goes on to make a due process argument under the Fifth Amendment about treating citizens one way under state law and another under federal law. The result is a legal muddle.

The opinion is so confusing that it inspired a highly unusual debate among the dissenters about what it means. Chief Justice John Roberts wrote his own dissent to note that while the majority "goes off course" in overturning Doma, it "is undeniable that its judgment is based on federalism." This would mean Windsor applies only to federal law, and the states are free to continue debating marriage.

But in his dissent, Justice Scalia is scathing about Justice Kennedy's "legalistic argle-bargle" and suggests that the equal protection language of the opinion means that some future case will require the Court to prohibit states from banning same-sex marriage:

"It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here -- when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it." Tell us how you really feel, Mr. Justice.

The decision is a major victory for gay marriage because it means the federal government must now accept same-sex marriages in the 13 states where they are legally recognized. But what happens when a gay couple married in Hawaii, say, moves to Alabama? Which state's law does the federal government then recognize? Soon enough lower courts will declare state laws barring gay marriage to be illegal, and the Supreme Court will have to revisit the issue.

Our hope is that Justice Roberts is right about Justice Kennedy's opinion, and that the gay marriage debate can continue to play out democratically in the states. As Justice Scalia writes, such basic moral and social issues are best settled through politics and not judicial ukase.

Public attitudes toward gay rights are changing, and rapidly. Nine states recognized same-sex marriage when the Court heard oral arguments in March. Four more have since joined them. The constitutional system and America's political temper will be better with more decisions like Hollingsworth and fewer like Windsor.