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After making us wait so long for a decision, at least SCOTUS could have delivered a coherent opinion on the Defense of Marriage Act. Instead, the majority’s opinion in United States v. Windsor is an incoherent mess. Justice Kennedy, joined by the four liberal justices held that DOMA “violates basic due process and equal protection principles applicable to the Federal Government.”
The bottom line is that this decision creates a national mandate in favor of same-sex marriages. The majority attempts to deny this, insisting that its decision is limited only to the application of DOMA, but the majority’s reasoning must lead inexorably to the destruction of all traditional marriage laws.
Why? First of all, the Court held that DOMA violates Equal Protection by singling out a particular kind of couple for unequal treatment. Keep in mind that the Equal Protection clause of the 14th Amendment does not even apply to the federal government (this led the majority to do some fancy footwork about how the Fifth Amendment’s due process clause was somehow expanded by the Equal Protection Clause.)
We have a mixture here of equal protection and substantive due process — not coincidentally, the same combination used by Vaughn Walker to strike down California’s Proposition 8. And, like Judge Walker, Kennedy et al. concluded that DOMA could only have been motivated by bigotry toward homosexuals. There is no earthly way in which plaintiffs will not use the Court’s decision to challenge each and every traditional marriage law in the 30-odd states that still have them.
One of the great ironies here is that the Court’s opinion masquerades as a federalism decision, but will end up usurping the power of states to regulate marriage as they see fit. The majority opens up with a seven-page discussion of federalism that ends up being a mere throat-clearing exercise. In the end, the Court does not conclude that DOMA violates federalism, but rather declares a new federal rule against traditional marriage that will end up forcing the states’ hands.
As I’ve argued before, the idea that DOMA violates the Tenth Amendment is fatally-flawed, and led many conservatives down the anti-DOMA path (wrongly, I believe). The intent of DOMA was to protect federalism by allowing states to regulate marriage without having the pro-SSM states impose their additional costs on the traditional states. The decision striking down DOMA will lead — soon, I believe — to yet another portion of the state’s inherent police powers being surrendered to the federal judiciary.