From Matt Coles, Deputy Legal Director of the ACLU:
Counting Heads and Reading Tea Leaves: What Today’s Marriage Decisions May Mean for the Future
Today’s decisions in Windsor v. United States and Hollingsworth v. Perry bring us much closer to something almost unimaginable just a few years ago: complete legal equality for LGB people. Windsor gets rid of the last federal law that explicitly singles gay people out for different treatment. The effect of Perry will be to restore marriage for same-sex couples in California, a critical business center and a critical culturally influential state.
In the midst of these terrific results, there are a few things in the cases that suggest a little caution about trying to get the Court to quickly decide the ultimate question of whether the federal constitution requires the states to allow same-sex couples to marry.
Three Justices took the opportunity of today’s cases to say they think the states are free to bar same-sex couples from marriage. Justice Scalia made that clear in his Windsor dissent, which Justice Thomas joined, as did Justice Alito in his Windsor dissent.
The Chief didn’t quite commit. But his Windsor dissent is essentially a roadmap for how one could use the “federalism/states rights” aspects of the majority opinion in Windsor to defend state laws excluding same-sex couples from marriage. Not encouraging.
The rest of the Justices didn’t commit at all. But the opinions in Perry and Justice Scalia’s dissent in Windsor suggest that right now, there might not be five votes to say the constitution requires marriage.
The majority opinion in Perry is not an indefensible duck of the marriage issue. The question of whether, once the state dropped out, there really was a dispute between parties with a personal stake in the outcome is a legitimate Article III question. But it turned out to be a not very important Article III question. As finally posed after the California Supreme Court weighed in, the question was whether Article III allows a state, when its law enforcement officials stop defending one of its laws, to designate a private party acting independently to represent its interests, or whether it must designate someone controlled by the state. That question really doesn’t implicate any of the important ideas that drive Article III debates. It is unlikely that a decision either way would matter greatly to even to people who are seriously engaged on Article III (well, maybe it would if you are passionate about it).
Justice Kennedy dissents in Perry, writing that he believed that California could designate the initiative proponents to represent the State’s interests. He gives not a clue about how he’d have voted if the Court had reached the merits, as he said it should. You have to wonder, though, if the moderates who signed the majority opinion in Perry felt Kennedy was a likely vote to strike Prop 8 on the merits, wouldn’t they have gone the other way on that not very interesting Article III question and joined him in a decision taking it down. It would have been easy, even for Justice Ginsburg, who does care quite a bit about the Article III standing of initiative proponents. A decision either way would have fit with her leading opinion in Arizonans for Official English. All of which at least suggests that there weren’t five votes to take down Prop. 8.
And there is Justice Scalia’s dissent. In Romer v. Evans, and Lawrence v. Texas, Scalia wrote two of the most effective dissents in modern court history. His Romer dissent effectively convinced many lower courts that the decision was doctrinally indefensible, and thus should be applied nowhere else. His Lawrence dissent helped focus the LGBT rights conversation on marriage and energize the opposition. It also successfully convinced many lower courts that Lawrence was a minimum rational basis case and helped make it functionally ineffective for several years.
So what is this calculating Justice up to here? The thrust of much of his Windsor dissent is to say with confidence that there are five votes to strike laws excluding same-sex couples from marriage, and to virtually invite a case to get to the Court right away. I hope I can be forgiven what may seem like cynicism for thinking that he’s being less than candid here. Kennedy seemed deeply worried about wading into the issue at the argument in Perry, and particularly worried about issuing a ruling requiring marriage. Kennedy goes out of his way in Windsor to say that the decision doesn’t reach past couples already married by states, echoing his insistence twice in Lawrence that his opinion there said nothing about marriage. And, while arguing that the Court should have reached the merits in Prop. 8, he stays studiously away from telegraphing anything about his views on it (unlike Justices Scalia and Alito in Windsor, who, while arguing that there is no jurisdiction there, go on to the merits). Maybe Scalia wants to get marriage to the Court quickly because he knows there aren’t five votes, not yet anyway.
It is probably inevitable that the Court will decide the issue at some point. Long after most of the country has accepted marriage for same-sex couples, some states are bound to hold out. And if the Court is not ready yet, it may not be too long before it is. A majority of Americans have come to accept the idea that marriage for same-sex couples is right far more quickly than anyone would have thought possible when Prop. 8 passed. Perry and Windsor were a major part of changing the country on marriage. If the next round of cases are well calculated to move the conversation forward, and the political change continues, even if not at so bewildering a pace, the Court should come around soon enough.