Unequal Justice: How U.S. v. Windsor Undermines Democratic Discourse

In May of 2012, President Obama became the first sitting president to announce his support for same-sex marriage.  Originally, Obama had defended the one-man, one-woman definition of marriage; then he made the move to support civil unions for same-sex couples.  Finally, a little over a year ago, he decided that the government should recognize same-sex unions as “marriages” and treat them as such.  However, even after completing this “evolution,” Obama suggested that the debate over marriage was a legitimate one.  Supporters of the traditional definition of marriage, he remarked, “are not coming at it from a mean-spirited perspective.  They’re coming at it because they care about families.”  He went on to add, “A bunch of ‘em are friends of mine… you know, people who I deeply respect.” [1]  With these words, Obama demonstrated his recognition of an important fact:  there are people of goodwill on both sides of the marriage debate – people whose viewpoints deserve respect.

Increasingly, however, progressives have abandoned this conciliatory attitude toward conservatives who believe that marriage is, by definition, a one-man, one-woman union.  Such conservatives, the liberal establishment would have us believe, are “backward” individuals, who hold their views out of sheer malice.  They oppose same-sex marriage not because “they care about families” and about society, but because they hate persons with same-sex attractions.  As every educated person knows, no one actually opposes same-sex marriage on rational grounds.

Recently, these assumptions about the defenders of traditional marriage have gained traction even outside progressive circles.  Indeed, many Americans now take the “malice” of social conservatives for granted.  What’s been the result of this radical shift in public opinion?  Engaging in civil, respectful discourse about marriage has become nearly impossible.  Over the summer, the Supreme Court only exacerbated this growing problem.

In June, the Court handed down rulings on two landmark cases concerning same-sex marriage: Hollingsworth v. Perry and United States v. Windsor.  While the court dismissed the former case, saying that the official sponsors of Proposition 8 (the law in question) did not have standing to appeal in federal court, the justices rendered a decision on the merits in United States v. Windsor.  The result?  Justice Kennedy, writing for the majority, held that Section 3 of DOMA (The Defense of Marriage Act), which defines marriage for federal purposes as “only a legal union between one man and one woman as husband and wife,” was unconstitutional.

Many commentators have construed this ruling as a “compromise” between the “conservative” and “liberal” wings of the Court.  The decision, they point out, did not invalidate state laws across the country that define marriage exclusively as a one-man, one-woman union.  Instead, it required the federal government to respect the marriage laws of individual states in determining who ought to receive federal marriage benefits.  In other words, gay couples legally married in states that recognize same-sex marriage will now receive federal marriage benefits (in addition to state marriage benefits); however, no state will be forced to change its marriage laws.

For defenders of traditional marriage, the Supreme Court ruling certainly could have been worse.  Many feared the justices would discover a “fundamental right” to same-sex marriage in the Constitution, thereby striking down marriage laws across the country as usurpations of “protected liberty.”  Fortunately, the Court did not make this error.  However, the Windsor ruling is still cause for significant concern.  One need only examine the language of Justice Kennedy’s majority opinion to see why.

In the words of one constitutional scholar, Matthew Franck, his opinion “was of a kind we are used to seeing by now from Justice Kennedy: long on windy rhetoric about ‘dignity’ and ad hominem attacks on the basic human decency of the law’s defenders, and short on actual coherent legal reasoning from recognizable constitutional principles.” [2]  So how exactly did Kennedy conclude that the Constitution requires the federal government to defer to state definitions of marriage in defining marriage for its own purposes?  First of all, Kennedy made reference to the principle of federalism.  Remarkably, he determined that DOMA somehow violated state autonomy – as if the Constitution forbids Congress from determining, without first consulting the states, who is qualified to receive federal benefits.

However, the crux of Kennedy’s opinion rested not on the principle of federalism, but on “due process.”  According to Kennedy, for the federal government to deny same-sex couples, legally married under state law, the same benefits as those granted to married opposite-sex couples constitutes a deprivation of the “liberty of the person” protected by the Fifth Amendment Due Process Clause.  For good measure, Kennedy cited “equal protection” as well (taken from the Fourteenth Amendment and incorporated in the Due Process Clause).  Essentially, Kennedy applied a jurisprudential doctrine known as “substantive due process,” which allows justices to identify certain rights unmentioned in the Constitution as fundamental, constitutionally protected rights.  Over the past century, many scholars and jurists have offered criticism of this practice, pointing out that it allows judges to “discover” rights in the Constitution that suit their own political inclinations.  Suffice it to say here that the majority opinions in Dred Scott v. Sandford, Lochner v. New York, and Roe v. Wade all rested on substantive due process grounds.

Let’s just assume, for the sake of argument, that the Due Process Clause does in fact protect the “right” of same-sex couples, married under state law, to receive federal marriage benefits, as Kennedy claimed.  The existence of this right does not, ipso facto, mean that the federal government has no legitimate reasons for placing restrictions upon it.  Indeed conventionally, when the Supreme Court wades into substantive due process analysis, it weighs government interests against personal rights, deciding which has the upper hand when they come into conflict.

Justice Kennedy, however, could not be bothered by such minutiae.  Astonishingly, he failed to address a single argument put forward by BLAG (Bipartisan Legal Advisory Group) – the House of Representatives group left to defend DOMA in court after the Obama administration deemed the law unconstitutional.  So not surprisingly, he concluded that DOMA did not further a single legitimate government interest.  The law’s sole purpose, in the eyes of Justice Kennedy?  To “injure” same-sex couples married under state law.  According to Kennedy, the 342 members of the House and 85 members of the Senate who voted for DOMA – along with President Bill Clinton – all had one thing and one thing only in mind when they passed the law: a bare desire to “harm,” “demean,” “humiliate,” and “disparage” same-sex couples.

Never mind the fact that BLAG – and countless other groups that filed amicus curiae briefs – pointed to a variety of legitimate government interests served by DOMA.  Just to mention a few: The law ensured that couples in different states were treated the same and that their federal benefits status would not change when they crossed state lines.  In addition, the law served to reinforce the traditional connection between marriage, childbearing, mothering, and fathering.  Furthermore, as Princeton’s own Robert George explained in an amicus curiae brief filed in support of BLAG, DOMA enshrined the “conjugal” definition of marriage in law, shielding it from revisionist definitions that undermine the rational basis for marriage’s stabilizing norms (including permanence, monogamy, and exclusivity).

Notice that none of these government interests served by DOMA had anything to do with demeaning same-sex couples.  To be fair, back when DOMA was first passed, the House stated that the law expressed “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.”  But even “moral disapproval” is not tantamount to animus.  Regardless, one can defend the traditional definition of marriage without making any moral judgments about homosexuality – let alone degrading persons in same-sex relationships.  Justice Kennedy obscured this fact in his Windsor opinion.  By ignoring BLAG’s arguments, he unfairly characterized all defenders of traditional marriage as irrational individuals, motivated by prejudice alone.

This element of Kennedy’s opinion – his blatant misrepresentation of DOMA’s supporters and (by extension) all who hold marriage to be a male-female union – makes the Windsor ruling dangerous.  As noted above, many Americans already consider social conservatives bigots with no legitimate justification for their views.  Kennedy’s opinion essentially places a judicial seal of approval on this misguided attitude.  Consequently, the Windsor ruling encourages not civil debate over an important, sensitive issue, but name-calling and unwarranted ad hominem attacks.  By Kennedy’s reasoning, Obama himself was wrong to express goodwill toward defenders of traditional marriage.

The Windsor ruling is dangerous in another way as well:  it poses a threat to religious liberty and rights of conscience.  Already, numerous individuals across the country have been prosecuted for declining, on religious grounds, to support same-sex marriage through their work.  Christian photographers, bakers, florists – all have faced legal action for running their businesses in accordance with their traditional beliefs about marriage.  Post-Windsor, individuals such as these will have an even harder time making the case for religious liberty in court.  Kennedy declared in Windsor that to oppose same-sex marriage is to demean same-sex couples.  How then will religious business owners explain that, in living out their faith-based views about marriage, they are not trying to disparage anyone?  These individuals certainly face an uphill battle.  Thus, in the same way Windsor threatens to undermine respectful debate over marriage, it threatens to erode religious freedom as well.

To be sure, there are certain people in this country who feel genuine hatred for persons with same-sex attractions.  However, the vast majority of Americans committed to defending traditional marriage have no desire to demean anyone.  Despite this fact, Justice Kennedy has enshrined in law the common perception of social conservatives as “monsters.”  Language such as his will only encourage divisiveness and disrespect.  Ironically, by leveling accusations of hatred so casually, Kennedy himself has given the people of this nation reason to look upon each other with hatred.  He based his ruling on the supposed incivility of DOMA’s defenders, but his own opinion encourages citizens to be uncivil in debating the issue of marriage.

Justice Scalia had the following to say in his Windsor dissent: “… it is harder to maintain the illusion of [DOMA’s] supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.”  Scalia was right.  Only when Americans actually begin listening to defenders of traditional marriage will they realize that they are not all members of a “lynch mob,” but people with real concerns about families and society.  It’s not too late for our country to have a civil debate about marriage – one marked not by animosity and name-calling, but by mutual respect.

[1] http://www.heritage.org/research/commentary/2013/7/civility-bullying-and-same-sex-marriage
[2] http://www.firstthings.com/onthesquare/2013/06/marriage-and-justice-wounded-but-not-fatally

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