No Suspense: Justice Scalia and Gay Marriage

My guess is that Antonin Scalia has newfound sympathy for Terry Lee Collins, that hapless anti-hero of the 2001 crime caper, Bandits. Chagrined at the predictable shenanigans of his co-conspirators, Terry carps, “You know the hardest thing about being smart? I always pretty much know what’s gonna happen next. There’s no suspense.” For the last several months the nation has been waiting to see what the Supreme Court would do with the gay marriage cases. Justice Scalia knew a decade ago.

In 2003, Scalia observed that the Supreme Court’s extension of constitutional protection to homosexual sodomy in Lawrence v. Texas­ logically necessitated the constitutional establishment of gay marriage. Justice Kennedy, writing for the Lawrence majority, assured the American people that the Court’s ruling “[did] not involve” the issue of gay marriage. “Do not believe it,” Scalia insisted. Given that the Court refused even to consider that there might be a rational basis for the traditional moral norms reflected in Texas law, there could likewise be no defensible reason to exclude gays from “any relationship that [they] seek to enter.” Without a legitimate reason to restrict homosexual conduct and relationships, traditional norms must be based on raw prejudice, reflexive disgust, or worse, downright “animus” (as the Court opined in Romer v. Evans (1996)). And clearly such motivations will not pass Constitutional muster (not to mention satisfy common decency).

With the release of the Supreme Court’s ruling in United States v. Windsor a couple of days ago, Justice Scalia’s prediction has been all but vindicated. The Court stopped short of declaring a constitutional right to gay marriage; however, Justice Kennedy (again writing for the majority) carried the essential argument of Lawrence forward to strike down §3 of the federal Defense of Marriage Act (DOMA). This provision defines marriage as the union of one man and one woman for the purposes of federal law. (DOMA’s other main provision (§2) holds that states do not have to recognize definitions of marriage adopted by other states, and this was left intact for the time being.)

Now, technically Windsor is more about federalism than it is about constitutional rights or marriage equality. The case involves a lesbian widow whose same-sex marriage (originally performed in Canada) was recognized under New York state law. When she tried to claim the federal estate tax exemption for surviv­ing spouses she was barred by DOMA. New York says she was married; Washington says she wasn’t. Which is it? The Windsor Court was unwilling to subject citizens in states that recognize same-sex marriage to a dual status: married at home, but single in the eyes of Uncle Sam. The regulation of domestic relations, the Court argued, is “an area that has long been regarded as a virtually exclusive province of the States.” Although the federal government is not completely excluded from regulating marriage, DOMA impermissibly infringes on state prerogative by subjecting citizens within a single state to conflicting schemes of marriage and thus introduces instability and unpredictability into a basic human relationship. Therefore, the problem with DOMA is that it violates the Constitution’s federalist principle, i.e., it interferes with traditional state powers. This seems to mean that the states are still free to define marriage according to the traditional heterosexual norm. And indeed, Justice Kennedy ends the opinion affirming as much. Chief Justice Roberts is also careful to point out in his dissenting opinion that the Court nowhere considers or rules upon whether states may continue to employ the traditional definition of marriage. “I think the majority goes off course, as I have said, but it is unde­niable that its judgment is based on federalism.”

Unfortunately, this is only half the story. Packed into the federalist structure of Windsor is a rejection of the purpose and content of DOMA “quite apart from principles of federalism.” This line of critique, as Scalia anticipated, is simply an elaboration of ideas established in Lawrence. Here again, Kennedy declined to consider the possibility that Congress (and then President Clinton) had even a minimally rational basis for enacting DOMA. Such explanations are not difficult to produce, e.g., uniformity in federal law, stability of reproductive relationships, etc. Nevertheless, Kennedy brushes past these possibilities to attribute irrational and malign motives to DOMA’s framers. Whereas New York acted to “enhance[] the recognition, dignity, and protection” of gays, proponents of traditional marriage were activated by a “design[] to injure the same class the State seeks to protect.” Windsor is replete with such disturbing attributions. The “avowed purpose” of the bill was to “disapprov[e],” “disadvantage,” “stigma[tize],” “disparage,” “demean,” and ultimately “humiliate” gay Americans and their children.

The upshot, of course, is that we face not a civil dispute over competing definitions of marriage (as Justice Alito suggests in his dissent), but rather a concerted effort by moral traditionalists to marginalize a minority on the basis of irrational prejudice and ill will. Framed in this way, the path from Lawrence to Windsor and ultimately a constitutional right to same-sex marriage is inevitable. Assurances along the way that Lawrence doesn’t entail Windsor or that Windsor’s federalism won’t collapse under the weight of its condemnation of the traditional understanding of marriage are specious at best.

Yet this is not to say that same-sex marriage is a fait accompli. Necessity in logic doesn’t amount to necessity in fact, and Chief Justice Roberts was right to reiterate the limited holding in Windsor. Regardless of what the liberal bloc of the Roberts Court will do if given the chance, the fact is that right now the Court has left the definition of marriage in the states’ hands. The question of what marriage is is still open to democratic debate, and as some commentators have recently observed, the Court is likelier to continue to defer to democratic debate if they can see there is democratic debate to defer to. It is therefore incumbent upon supporters of traditional marriage to continue to advance reasoned arguments in the public square. To this end, books like What Is Marriage? Man and Woman: A Defense, co-authored by Sherif Girgis, Ryan T. Anderson, and Robert P. George are more important than ever. I’ll be discussing their arguments in an upcoming post.

  • syates21

    Except that the court doesn’t really leave it in state hands, since on the very same day it let stand a federal judge’s decision declaring a lawfully enacted CA state constitutional amendment protecting the definition of marriage as “unconstitutional”. How is that consistent with the “federalism” fig leaf proferred in the ruling on DOMA?

    • Matthew Wright

      Thanks for the comment. You’re right to point out the practical inconsistency between the outcomes in Windsor and Hollingsworth v. Perry. However, Hollingsworth was decided on the procedural issue of standing. The vote did not split along ideological lines. There was just a disagreement about what is necessary to get into federal court. So I don’t think we can take Hollingsworth to be doctrinally inconsistent with the federalism articulated in Windsor. However, I agree with you that that federalism is a fig leaf.

      • syates21

        Fair enough. Nice article BTW. Most of what I’ve read hardly seemed to pay attention to the cases themselves and instead just had pre-canned opinions on the issue. Clearly you put some thought into it and actually read more than headlines in the analysis. So thanks for that.

    • BobTrent

      The Supreme Court, like lower appellate courts, deals with the facts that are brought before the Court. Most of the time, anyway. This is one reason for rulings that conflict.


      Roe v. Wade permits states to restrict abortion after “viability,” which was thought to be at about 28 weeks, then 24 weeks, then a 21 week baby survived and is now an adult. There is some variation in when the counting starts.

      However, the case printed immediately following Roe, Doe v. Bolton, and decided simultaneously, removed that restriction. What mixed signals!

  • Kullervo

    Federalism is a red herring. Despite the federalism and substantive due process smokescreen, Windsor definitely is decided as an equal protection case. It’s confusing because the opinion never comes out and spells it out, and frustrating because they don’t announce which equal protection test is being applied, but take a close look at the case again.

    • Matthew Wright

      One consistent feature of the jurisprudence of expanding constitutional rights is its casualness about doctrinal specificity. Justices of Kennedy’s ilk are less concerned to ground an opinion in a particular constitutional provision as they are to sound as many constitutional notes as possible. So you find both substantive due process and equal protection arguments in Windsor. I don’t think Kennedy cares if the case is taken to rest ultimately on one above the other.

      I agree that the federalism argument is ultimately a red herring. However, it can’t be ignored entirely because it’s the basis of Windor’s limited holding. The Court specified at the end of the decision that the ruling only applied to cases where states had recognized same-sex marriage. As Chief Justice Roberts pointed out, the Court clearly did not consider whether a state could define marriage according to the traditional norm. If Kennedy had only made the due process and equal protection arguments, there would have been no basis for this limited holding. So regardless of the flimsiness of the federalism argument, it is doing something important in the case. And for the time being, that has real political implications.

  • ahermit

    The upshot, of course, is that we face not a civil dispute over
    competing definitions of marriage (as Justice Alito suggests in his
    dissent), but rather a concerted effort by moral traditionalists to
    marginalize a minority on the basis of irrational prejudice and ill

    Sounds about right…

  • ortcutt

    “Such explanations are not difficult to produce, e.g., uniformity in federal law, stability of reproductive relationships, etc.”

    Neither of these explanations will work.

    First, Federal law is just as uniform without Section 3 of DOMA as it is with it. The only question is which of the uniform rules would be applied to determine who is married for Federal purposes: (1) no recognition of same-sex couples, (2) apply the law of state where the marriage was contracted, or (3) apply the law of the state of domicile. In every other aspect of Federal law, the Federal Government happily uses uniform standard (2) with no problem whatsoever. For example, some states allow first cousins to marry, some do not. The Federal government just says that if the state where the marriage was contracted recognizes first-cousin marriage, then they are married.

    Second, excluding same-sex marriages from Federal recognition does nothing to promote the stability of reproduction and child raising within different-sex marriages. Banning Susan and Betty down the street from Federal recognition of their marriage does nothing to make it easier for my wife and I to conceive or raise children. In that same way that recognition of octogenarian different-sex marriage does nothing to undermine reproductive relationships, same-sex marriage does not either. This rationale is raised frequently, but it’s just fundamentally confused and a basic logical error.

    Finally, consulting the Congressional Record makes quite clear what the motivation for Section 3 of DOMA was. As Justice Kagan quoted in Oral Arguments, the House Report states, “Congress decided to reflect and honor of collective moral judgment and to express moral disapproval of homosexuality.”

    • Matthew Wright

      Thanks for your comment. Your objections are reasonable, but
      by no means dispositive. The need for uniformity of law in particular cases falls squarely within the realm of legislative prudence, and rational basis review (under both the due process and equal protection clauses) has always been highly deferential to the legislature’s judgment. The Windsor court was not deferential; it was not even even-handed. If it had been it would have at least considered justifications like those I raised, and perhaps made counter-arguments like the ones you offered. But to do so with any depth would have demonstrated, not clear irrationality, but complicated issues calling for political—not judicial—judgment. However, this wouldn’t do, so Justice Kennedy side-stepped the issue and merely asserted there was no rational basis for DOMA.

      Yet, even if one grants the Court’s position that clearly DOMA was only grounded in moral disapproval of homosexuality, what’s the appropriate response? Simply rule DOMA is legislative overreach because
      Congress is trying to exercise a general police power to regulate for health, safety, and morals (something that states, not the federal government, are empowered to do). Instead, Kennedy reverts to the kind of question-begging analysis he used in Lawrence, and in
      Chief Justice Roberts’ words “tar[s] the political branches with the brush of bigotry.” This isn’t constitutional interpretation; it’s political advocacy.

      • ortcutt

        You didn’t respond to anything I actually said about uniformity. It arguably removes uniformity for the Federal government to recognize some valid Massachusetts marriages but not recognize others. From the standpoint of the traditional deference to state conditions of marriage, that is the removal of uniformity not the institution of it.

        The Court found in Romer that mere moral disapproval isn’t sufficient ground for a state law, so you can’t assume that such a law would fall under state police power, let alone Federal power. You may not like Romer or Lawrence, but both are the law. The upshot of both is clear. Government isn’t in the business of policing personal morality. Fraud and government corruption may be moral offenses within government purview, but oral sex isn’t. The Court doesn’t need to adopt the charge of bigotry to conclude that the political branches have adopted a statute on impermissible grounds.

        • Matthew Wright

          Let me refer you to pages 19-20 of Scalia’s dissent for a description of the problems that can arise in cases where no federal definition controls. It is not difficult to see that Congress might consider these complications to be uniquely exacerbated by a hotly contested, vacillating political issue like gay marriage, while being infrequent enough in the case of marrying first cousins
          to accommodate some variation among the states. Under standard rational basis review, it doesn’t matter whether Congress is right about this. The Court is not constitutionally authorized to correct bad legislative judgment. It only matters that there is some plausible
          state interest being served.

          You’re right that I’m critical of Romer and Lawrence along with Windsor. My main point is that the kind of analysis Kennedy establishes in the first two (he authored all three) logically necessitates the conclusion he reaches in the last. You state yourself a central reason these opinions are so problematic: “The Court doesn’t need to adopt the charge of bigotry to conclude that the political branches have adopted a statute on impermissible grounds.” And yet this is consistently what Kennedy does. To my mind, anyone who cares about civil discourse and open democratic debate should find that troubling.

          • ortcutt

            There’s no problem of choice of laws unless the goal is to deny Federal recognition to a couple who has entered into a valid marriage contract according to the state of celebration. It’s circular to say that the justification for denying Federal recognition is the need for a uniformity of choice of laws that would be required if we were to decide which validly entered marriages would not be Federally recognized. There’s no need to get on that cartwheel if the Federal government recognizes all validly contracted marriages (according to the state of contract). Scalia seems determined to construct a problem for Congress to solve when there is no problem. Furthermore, we didn’t have a problem of Federal choice of laws when some states failed to recognize interracial marriages. Why is this a problem now when it wasn’t then?

            Sure. Romer and Lawrence do necessitate Windsor. Anyone could have said that when Romer was issued. Romer, Lawrence, and Windsor are a collective victory for John Stuart Mill and a defeat for those who think that the job of government is to criminalize or legally disadvantage people that has no other justification than “That’s icky” or “This book says these people are bad.”

    • BobTrent

      “For example, some states allow first cousins to marry, some do not.”

      States that refuse to issue marriage licenses to first cousins recognize first cousin marriages entered into in states and countries that do recognize them.

      The Bible is not the absolute guide in these matters. Abraham was married to his half sister. Isaac was married to Rebekah, who was his second cousin twice over through both his father, Abraham, and his mother, Sarah, who was also his aunt. Moses’ father Amram was his mother Jochebed’s nephew – this of course makes her her husband’s aunt.

      Jacob, Isaac’s son, married his cousins, Rachel and Leah, then used their servant women as surrogate mothers.

      A man could have all the wives and concubines (not “mistresses” but second-class wives) he could manage. Solomon was condemned not for violating Deuteronomy 17:17 but for marrying foreign pagan women. Jesus’ recital of the marriage laws accommodated this marital relationship. While held in some disdain, polygamy was never forbidden by the Bible. The prohibition of bigamy was incorporated from the pagan Romans and Greeks, who still, while forbidding a man from having more than one wife concurrently, permitted him to have all the concubines he could deal with.

      Many nations and cultures have accepted and even honored sibling marriages, father-daughter, mother-son and every degree of lesser relation.

      If the Bible was chosen as the basis of matrimonial morality/legality, what provisions would be adopted? Before the law of Moses polygamy and sibling marriage was allowed. The law of Moses forbade any more marriages like his own parents’. Jesus reverted the law of marriage from Moses’ tolerance of remarriage after divorce to an absolute prohibition of remarriage of divorced women. Yet He did not forbid bigamous marriage except when a man divorced his wife for the purpose of replacing her with another he liked better.

      In former times girls were allowed to consummate their marriages at very young ages. Islam permits a girl of 9 to consummate her marriage since Mohammed did it, though different Islamic nations have imposed higher ages for marriage by statute. At least one tribe of Amerindians permits marriage of girls as young as 7. The Canadian government tolerates this as long as both the man and his wife are members of the tribe.

      Civil regulation of marriage, then, will take into account the long-standing customs of the people and of the people of nations whose cultures are common with segments of the American population. Concurrent bigamy is forbidden; sequential bigamy accepted. Consanguinity, both genetic and legal, is restricted to certain degrees of relationship, not so much for genetic reasons but in the interest of uncomplicated family relationships. Father-daughter and mother-son marriage, even temporary fornication, is strongly forbidden as confusing of the parent-child relationship, as grandparent-grandchild, whether ancestor-descendant genetically or parent-child by adoption.

      If genetic abnormalities of progeny are invoked as a reason for prohibiting marriage of certain degrees of relations, how would that apply to adoptive father-adopted daughter sexual relationships? Why would sexual relationships between (or among! why not?) persons unrelated by “blood” be restricted? Why not father-son homosexual “marriage”? Mother-daughter? Why not homosexual polygamy? Why not father-daughter if one or both has been surgically sterilized? Mother-son? None of these relationships has any possibility of producing offspring.

      Is society going toward Robert Silverberg’s The World Inside (1971) as a model?