I’m still reading Justice Kennedy’s opinion in the DOMA case and I’m going to put some of my thoughts down here as I go. It’s important to remember that Kennedy was also the author of the two most important gay rights decisions in the history of the court, Romer v Evans and Lawrence v Texas, and this ruling draws quite clearly on his previous rulings on these questions. A couple of important ideas and themes in the new ruling come directly from the older rulings.
For example, in Romer, Kennedy wrote the opinion striking down a Colorado statute that forbid the state or any local government from protecting gay people from discrimination. And in that ruling, Kennedy argues that the statute cannot even satisfy the rational basis test because the only basis for its passage was “animus” against gay people and a desire to treat them as second class citizens. He uses similar language here:
DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality “must at the very least mean that a bare con- gressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. In determining whether a law is motived by animproper animus or purpose, “‘[d]iscriminations of an unusual character’” especially require careful consideration…
DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions ofmarriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the lawhere in question are to impose a disadvantage, a separatestatus, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States…
DOMA’s principal effect is to identify a subset of statesanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, ofboth rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMAforces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of statesanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriagesare unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects and whose relationship the Statehas sought to dignify.
And then there’s this very important statement from the ruling, pointing out how DOMA damages the children and families of gay couples:
And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives…
DOMA also brings financial harm to children of samesex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses. And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security.
The anti-equality side claims that they’re “pro-family” and concerned about children, but the opposite is true. They are actively seeking to harm families headed by LGBT people. They’re only “pro-family” when those families look like theirs.
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