The majority opinion's reasoning was murky, but it sets a precedent for a future ruling to make gay marriage a constitutional right
Last week the Supreme Court has ruled in United States v. Windsor that section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. For all purposes of Federal laws, section 3 defined marriage as a union between one man and one woman. The case arose in New York, under the law of which same-sex couples may enter a status that New York defined as marriage. Ms Windsor, a resident of New York, was the beneficiary of her deceased same-sex spouse’s sizeable estate. Under Federal tax law as affected by section 3 of DOMA, she could not claim the marital exemption that would have sheltered all her inheritance from the IRS. Rather, she was assessed over US$363,000 in Federal estate taxes.
The legal issue, as the Court chose to define it in the majority opinion, was whether the Federal constitution was violated when it applied its definition of marriage to the resident of a state in which the definition was broader. In this situation, the Court held, DOMA is unconstitutional as "a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution."
As the dissents of Justice Scalia and Justice Alito make clear, the reasoning and legal principles on which the ultimate result was based remain murky. It is as if the Court went out of its way to mystify the exact reasons for holding unconstitutional a Federal law that was enacted by overwhelming majorities in 1996 and signed into law by President Bill Clinton — not exactly a hateful, bigoted conservative. The murkiness may well serve as a cover to allow the decision to be used later for an even more expansive ruling.
In his dissent, Justice Scalia predicts that this decision represents but a way station on a journey to another ruling that will prohibit the Federal government and the states from limiting the definition of "marriage" in any way. Justice Scalia is right, for the majority seems to be following a jurisprudential road that we have seen before in matters involving sex.
The Windsor opinion serves the same role for "gay marriage" as the case, Griswold v. Connecticut (1965), served for abortion almost half a century ago. It was in Griswold that the Court penned the infamous language that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." In Griswold, the Court ruled unconstitutional a state law prohibiting the sale of contraceptives because it impinged "the zone of privacy created by several fundamental constitutional guarantees," thus offending due process.
Strictly speaking, the Griswold opinion addressed only the rights of a married couple to purchase contraceptives, but the principle announced in the decision clearly extended further. The Court quickly jettisoned its concern for the marital relationship in favor of a concern for the sexual behavior of individuals, married or not (see Eisenstadt v. Baird, 1972). Griswold’s concept of privacy then became the linchpin of Roe v. Wade in 1973. When one reads the decisions in chronological order, it is hard not to conclude that Griswold was intended only to be a way station and not the destination, and its stress on protecting the marital relationship was just rhetoric.
In our time, the next case in the trajectory of marriage jurisprudence may constitute the Roe v. Wade of marriage laws, in which the Court might well use Windsor as a precedent to strike down the marriage laws of the states that still fail to recognize same-sex marriage.
It is hard to believe that the majority does not deliberately intend such a result. If it did not, it would have decided the case on grounds of federalism, rather than the vague Fifth Amendment ground that it ultimately cited. In fact, as Justice Scalia observes, the majority describes at some length the almost exclusive role of the states in the area of family law. For most of our history, the Federal courts and Congress have acknowledged that the Federal government has no role in such things as marital status, divorce, and property succession upon death (probate). This lengthy discussion, it seems, turns out to have been the equivalent of a head-and-body fake in basketball, for Federalism does not form the basis of the holding.