Right at the beginning of his opinion, Kennedy says something that almost everyone would agree with, he starts out great: He says “Two women…” That’s good. After that, though, he goes downhill very, very quickly:
Two women then resident in New York were married in a lawful ceremony in Ontario, Canada, in 2007.
Well, he certainly buys into one perspective on the controversy without even a nod to the other side, right from the first sentence. “Were married”, is it? He could have chosen to use language that doesn’t assume what he is trying to prove. How about: “received the legal status of marriage from the province of Ontario”, or maybe “went through a wedding ceremony in Ontario”. Such language would leave it open whether this needs to be considered “marriage” for NY State or US federal purposes.
Kennedy cites the Obama Administration’s rationale for its change of course, in not fighting for Article 3 of DOMA in court:
the Attorney General informed Congress that “the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny.”
This is clearly inapposite: DOMA doesn’t even speak to sexual orientation in any manner. Certainly nothing in the law speaks to or imposes a “classification” based on sexual orientation. The history of discrimination imposed on the basis of sexual orientation should have no bearing here.
Kennedy describes DOMA as disrupting the state’s law to “protect” the rights of its persons. But when he describes what state marriage law does, he is more accurate:
Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.
Making a grant of privileges is a distinct kind of act than that of protecting the rights of persons. Human persons have the same basic rights because they have the same basic human nature. But no state grants to every person in its borders all the same privileges, because privileges are granted pursuant to distinctions between persons, (or even at the pleasure of the executive): a doctor can get a license to practice medicine, and I cannot, because he has training that I don’t. A medical license isn’t a basic human right.
He then goes on to describe DOMA as
The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.
But this is clearly contentious: if granting the state privileges of marriage is what state law does, then federal law granting other federal privileges upon marriage is, again, not “restricting” nor “imposing disabilities.” It isn’t a disability to NOT GET a privilege. Moreover, the federal law does not pretend to rescind the state privileges of marriage, it only speaks to the federal privileges. Kennedy is having trouble making up his mind: sometimes the state is granting a “status and dignity” but when the feds don’t go along the state is “protecting” a class the feds are trying to “injure”. So, the federal government is “injuring” the people to whom it fails to grant the very privileges that 39 other states don’t grant their citizens? How is that again?
State law can define “disability” for state purposes, such as granting state benefits, whereas federal law can be more restrictive in defining “disability” for federal benefits. Doing so doesn’t somehow injure the status of state-defined disabled people. Saying that these people aren’t eligible for federal benefits doesn’t create a status of discrimination in which they are denied basic rights.
Is it too much to ask that one of the 9 persons on one of the most powerful deliberative bodies in the world should surpass a standard that a any college professor would call a sophomore to meet? That he not make up any old language that pre-judges the issue by crafting phrasing that pretends there is only one possible perspective on the facts to be seen. That he present a case in an objective manner? My wife teaches a 9th grade class to write two-position papers, where they have to present both sides of a controversial topic, and although they are expected to take one side in the end, part of the point is for them to learn to state both sides of the argument fairly. Kennedy’s written opinion would not escape that class without correction.
Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form “but one element in a personal bond that is more enduring.” Lawrence v. Texas, 539 U. S. 558, 567 (2003). By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond.
As I predicted, the Justice who gave us “Lawrence” would give us gay “marriage”, because of his internal failure to recognize any root principle other than personal autonomy. But more, Lawrence itself is the preparatory vehicle that enabled Kennedy to force this ruling down our throats: because Lawrence rules same-sex acts to be legal, there remains no basis to deny them marriage! As if two people having sex is all it takes to formulate a marital establishment.
Lest you think that Kennedy’s calling DOMA’s effect that of imposing injury is just a sideshow to his real argument:
The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.
And that’s it. That’s constitutes the crux of his argument, on page 21. The rest is just eliciting the details of his claim.
After I came to this conclusion, I read Scalia's almost exact support of the same point as mine above, that Kennedy's argument is puerile to the point of being embarrassing:
The majority concludes that the only motive for this Act was the “bare . . . desire to harm a politically unpopular group.” Ante, at 20. Bear in mind that the object of this condemnation is not the legislature of some onceConfederate Southern state (familiar objects of the Court’s scorn, see, e.g., Edwards v. Aguillard, 482 U. S. 578 (1987)), but our respected coordinate branches, the Congress and Presidency of the United States. Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute. The majority does the opposite—affirmatively concealing from the reader the arguments that exist in justification. It makes only a passing mention of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them. See ante, at 21. I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.
Justice Roberts, in his dissent, clarifies a most important point:
The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their “historic and essential authority to define the marital relation,” ante, at 18, may continue to utilize the traditional definition of marriage.
As I semi-predicted, Kennedy found a way to irritate both sides of the controversy, by ruling in such a way that states remain free (for now, that is) to deny marriage for same sex couples. The Court could have ruled that all marriage laws that preclude SSM are unconstitutional (even though that question wasn’t directly before the Court, not essentially). It chose not to do so. More than likely, 4 justices of the majority would have been happy to rule so, but Kennedy was not happy to go that far. One suspects that he was chosen to write the majority opinion because he was the only one willing to craft an opinion that kills DOMA but does not kill the constitutionality of discriminatory marriage laws in the states...yet.
On Calif Proposition 8, the Court declined to rule because they refused to recognize the appellants as having standing to sue. Interestingly, Kennedy was in the dissent on this, which is consistent with the prediction we came to in our earlier discussion, but with Scalia opposing standing, my prediction was wrong because it was based on faulty data about California law.
My argument was this: the State of Calif clearly has standing to sue in protection of its own constitution. Normally, a state uses the organs of its own government to both make law and to protect law in court. However, on occasion, the state power reverts to the power of the people themselves to make law, (referenda), particularly for its most basic law, its constitution. In those cases it is using the inherent “power of the people” that underlies the power of the government’s organs. When a state government refuses to support such a constitutional provision made by the people, the people once again take up their own proper power to protect their own constitution by defending it themselves, by operation of their own prior law handing that activity to the proposition’s own originators. Under operation of law, for these purposes the prop’s originators become the delegates of the state itself in pursuit of protection of its own constitution. This argument was based on information that California law explicitly gives a power to the initiatives own sponsors if the state government won’t support it. Turns out that this was a misrepresentation by certain parties (at least, that’s the way it looks at the moment. I would like to know if the initiative proponents were citing specific Calif law in their claims for standing).
The Court does not question California’s sovereign right to maintain an initiative process, or the right of initiative proponents to defend their initiatives in California courts. But standing in federal court is a question of federal law, not state law. No matter its reasons, the fact that a State thinks a private party should have standing to seek relief for a generalized grievance cannot override this Court’s settled law to the contrary… Snip There, in expressing “grave doubts” about the standing of ballot initiative sponsors to defend the constitutionality of an Arizona initiative, the Court noted that it was “aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.”
To me, it Roberts could not say this if there were an explicit state law that gave the initiative proponents a role in default of the usual state agents.
However, it should be noted that by not ruling on the substance of the Prop 8 lower court decision, the Supreme Court leaves it open whether other states can preclude gay marriage. Personally, I think it little more than a useless waste of time to have ruled so: there will be, without any doubt whatsoever, a suit brought in another state that outlaws gay “marriage”, and it will end up in front of the Supremes. Then they will have to address it on the merits. Maybe, just possibly, the conservatives were hoping for a better state case to take up the decision: maybe a state in which gay adoption is not legal, and in which they are prepared to make a positive claim for compelling interest in supporting the complementarity of traditional marriage in its relation to the natural capacity to generate children.
But don't hold your breath.