Justice Scalia wonders if the majority’s aim was rhetorical, to add a veneer of respectability to a ruling not only novel in Federal jurisprudence, but flatly contradictory to the entirety of American tradition on marriage and homosexuality up to the 1990s. A reader may justifiably conclude that that it is a tactic that appears to have been taken straight from the Griswold playbook.
The majority says that by invading states’ rights, DOMA represents "discrimination of an unusual character" that indicates nefarious purposes and justifies "careful consideration" (quoting Romer v. Evans, 1996). Justice Kennedy, the author of the majority opinion in Windsor, was also the author of Romer and it is remarkable that he quotes Romer immediately following a discussion of states’ rights. Romer actually displayed a breathtaking disregard for states’ rights.
Readers may recall that the plaintiff in Romer challenged a Colorado constitutional amendment, adopted by a vote of the people, in which the state and local governments were forbidden from considering homosexuals to be a class that deserves any more protection in the state constitution than other citizens are. The Supreme Court ruled in Romer that they had to be given a special status in the law, notwithstanding the Colorado constitution, because the equal protection clause of the Federal constitution would be violated if they were not.
The fact that Romer totally rejected any deference to states’ rights when the state refused to recognize homosexuals as a special class supports a conclusion that citing states’ rights in Windsor is a rhetorical ploy and not a statement of principle that can be relied upon in the future.
Legal scholars will soon expend much ink future divining just what part of the Constitution Windsor is based on. Moreover, the ambiguity in the majority’s language will undoubtedly vex lower court judges who have to apply it in future cases. The case law cited in Windsor is largely drawn from equal protection jurisprudence, but later comments in the majority opinion indicate that due process under the Fifth Amendment is its foundation.
The Fifth Amendment encompasses both equal protection and due process when Federal statutes and actions are under scrutiny, but the two protections are usually reviewed separately and under somewhat different rationales. Perhaps the Court was deliberately vague in the expectation that the lower Federal courts will use their imaginations to create various lines of reasoning from which the Court may draw what it finds useful in the future.
It is hard to predict what ground the future Roe v. Wade of homosexual marriages will cite as its legal basis for imposing "gay marriage" on the states that have not yet enacted it.
Clearly the majority in Windsor does not want to tie the future Court’s hands. Perhaps the Windsor majority cannot agree among themselves what the basis should be. Current members of the Court may recall that Roe v. Wade was heavily criticized for its poor reasoning, even by its own supporters. Justice Ginsburg, as an attorney and afterward as a judge, has long opined that the right to abortion should be founded on the equal protection clause. The author of Windsor joined in the plurality opinion of Planned Parenthood v. Casey, in which the "right" to abortion was recast from a fundamental right of privacy into a less-fundamental liberty interest. It is quite possible that the majority in Windsor did not want to be very specific about its grounds so that the future Court would not be tied to any particular legal theory and could benefit from commentary on the legal theories that are developed by the lower courts.
Nothing is certain in this life, of course, but Windsor does not bode well for the future of traditional marriage in American law. It will be for other columns to explore its implications for additional mutations of marriage — particularly polygamy and polyandry, its possible consequences for First Amendment freedoms, and how it will affect the lives of ordinary people in the United States.