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.”