The Corner

Windsor: Tarring ‘the Political Branches with Bigotry’

Today’s gay-marriage opinions deflated the balloon on the Prop 8 case, but made DOMA the centerpiece. On first glance, the decision in the DOMA case, United States v. Windsor, is embarrassingly deficient. It does not identify the right at stake clearly, it does not specify the standard of review, and it does not explain why Congress is assumed to be acting purely out of bad motives. Most of the opinion is devoted to a discussion of federalism, but most of it is tangential. The Court cannot quite hold that Congress is not allowed to adopt definitions of words like “marriage” for federal-law purposes, so it instead says that the federal definition shows an intent by Congress to harm gays. The conclusion assumes, without explicitly saying so, that 342 Members of the House, 85 Senators, and President Bill Clinton were all guilty of antigay bias in 1996, when DOMA was enacted. As Chief Justice Roberts says, “I would not tar the political branches with bigotry.”

Once the majority can claim a suspected bad motive on the part of Congress, any law that makes gays worse off is immediately struck down. No analysis of the government’s other purposes, no questions about whether the law is tailored to meet that purpose (on which the Court spent so much time and energy in the affirmative-action and voting-rights cases). So in this respect, Windsor is actually quite an expansion from Lawrence v. Texas, where the Court struck down Texas’s anti-sodomy law because, it found, the only purpose of the law was motivated by hatred of gays. Here, the Court says that Congress had a desire to mistreat gays, but it cannot claim as it did earlier that this was its only purpose. There is little doubt that Congress had other, legitimate motives that did not have to do purely with discrimination, such as standardizing federal law across the nation, reducing federal costs, and so on. On this score, gays have become a constitutionally-protected class due higher protections than even racial minorities — which shows how the Windsor majority has contorted the Constitution to reach its preferred result. I happen to agree with the policy result — allowing gays to marry — but the Constitution does not allow the Court to impose it on the country in this way.


John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University.


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