Worse Than It Sounds, and It Cannot Be Cabined

by Hadley Arkes

These decisions, handed down by the Court today, affect to be limited in their reach, but they are even worse than they appear, and they cannot be cabined. They lay down the predicates for litigation that will clearly unfold now, and with short steps sure to come, virtually all of the barriers to same-sex marriage in this country can be swept away. Even constitutional amendments, passed by so many of the states, can be overridden now. The engine put in place to power this drive is supplied by Justice Kennedy’s “hate speech,” offering itself as the opinion of the Court in U.S. v. Windsor. Kennedy wrote for the Court in striking down Section 3 of the Defense of Marriage Act (DOMA), the part of the act that recognized as “marriage,” in federal law, only the union of a man and woman. In Kennedy’s translation, the Defense of Marriage Act showed its animus in its very title: The defense of marriage was simply another way of disparaging and “denigrating” gays and lesbians, and denying dignity to their “relationships.” As Justice Scalia noted so tellingly in his dissent, Kennedy could characterize then as bigots the 85 senators who voted for the Act, along with the president (Clinton) who signed it. Every plausible account of marriage as a relation of a man and woman can then be swept away, as so much cover for malice and blind hatred.

As Scalia suggested, that opinion can now become the predicate for challenges to the laws on marriage in all of the States. A couple of the same sex need merely go into a federal court and invoke Justice Kennedy’s opinion in the DOMA case (U.S. v. Windsor): The Supreme Court has declared now that a law that refuses to recognize same-sex marriage is animated by a passion to demean and denigrate. Any such law cannot find a rational ground of justification. As Kennedy had famously said in Romer v. Evans, those kinds of laws can be explained only in terms of an irrational “animus.”

That may be enough to have the laws and the constitutional provision overruled. But it gets even better if the state has a Democratic governor: For he may declare now that he will not enforce the constitutional amendment, for he thinks it runs counter to the federal Constitution. And by the holding today in the case on Proposition 8 in California (Hollingsworth v. Perry), the backers of the constitutional amendment will have no standing in court to contest the judgment. Constitutional amendments are meant to secure provisions that will not be undone by the shift in season from one election to another. But with the combination of these two cases today, any liberal governor can virtually undo a constitutional amendment on marriage in his state.

Justice Kennedy sought to pretend, and Chief Justice Roberts pretended to believe him, that his judgment applied only to Section 3 of DOMA, in which the Congress declared that, in federal law, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife.” Section 2 of DOMA sought to support the authority of a state to refuse to credit a same-sex marriage brought in from another state. It sought to prevent one state from indirectly nationalizing homosexual marriage, with the aid of the Full Faith and Credit Clause of the Constitution. Justice Kennedy insists that the decision on Section 3 does not touch Section 2: It does not compel any State to recognize same-sex marriage. But as Justice Scalia quipped in dissent, that claim falls into the list of “bald, unreasoned disclaimer[s].” Kennedy’s opinion will be hauled out in the cases to come to argue that the State has no justified ground for refusing to accept same-sex marriage in its own laws, or crediting the same marriages coming in from other states.

In Hollingsworth v. Perry, the Court refused to recognize the standing of the backers of Proposition 8 to defend that constitutional amendment in the courts. Once the governor of the state refused to defend the amendment, the backers of the amendment could claim no personal injury at stake in the litigation. When a federal district court struck down Proposition 8, the backers of the amendment had no standing to take the case into a higher, appellate court, and that court, in any event, turned out simply to confirm the holding of the district court. In denying standing, the Supreme Court now swept away the holding of the appellate court. All that is left is the holding of the District Court, which covers only the litigants in the case. And the holding has no precedential standing in any other court. And so, would the case cover no one but the litigants, and would Proposition 8 still be on the books? But more “bald, unreasoned disclaimer.” The legislature will take Justice Kennedy’s language in the DOMA case to call into question the standing of Proposition 8 as a constitutional amendment in California. And they may proceed then to legislate again to establish and promote same-sex marriage.

Our friends in the National Organization of Marriage could well be put out of business by the work that the Court today has completed. They may have to think anew on a strategic path once considered and long ago discarded: They may have to ponder again the use of Article V of the Constitution to amend the constitution on the appeal of two-thirds of the states.  If we add the number of states that have constitutional amendments now to protect marriage, along with States that have resisted same-sex marriage in their laws, they would be more than enough to call for a constitutional convention to amend the Constitution on this subject.  

Present at the Court today were families of the justices, as the Court reached the end of its work for the term. But as we passed out of the courtroom this morning, all quite amiable and civil, the culture war had taken a decisive, real turn.           

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