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Today’s gay marriage opinions deflated the balloon on the Prop 8 case, but made DOMA the centerpiece. On first glance, 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 anti-gay 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 an ill motive on the part of Congress, any law making gays worse off is immediately struck down. There’s no analysis of the government’s other purposes and no questions about whether the law is tailored to meet those purposes (an issue on which the Court spent so much time and energy in the affirmative action and voting rights cases).
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 motivation of the law was hatred for gays. Here, the court says that Congress had a desire to mistreat homosexuals, 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 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 afforded 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.Published in