Kyle Duncan is a lawyer in private practice in Washington, D.C. He successfully defended Louisiana’s marriage laws in Robicheaux v. Caldwell, and filed an amicus brief on behalf of fifteen States in Obergefell v. Hodges. The views in this post are his alone.

 In Obergefell v. Hodges, fifteen states submitted an amicus brief cautioning that a decision constitutionalizing the issue of same-sex marriage would repudiate the Court’s own recent decision in United States v. Windsor, demean the democratic process, and imperil civic peace by marginalizing the views of millions of Americans. Now that decision has come. Let’s examine it in light of the concerns raised by those states.

Windsor’s Disappearing Ink

Just two terms ago in Windsor, a five-Justice majority emphatically reaffirmed the authority of states to decide whether to adopt same-sex marriage on the basis of democratic deliberation. Windsor invalidated the federal marriage definition in the Defense of Marriage Act because it undermined New York’s decision to extend marriage to same-sex couples. The Court left no doubt that the states’ “historic and essential authority to define the marital relation” was the hinge on which Windsor turned. DOMA’s federal marriage definition was invalid because it wrongly sought “to influence or interfere with state sovereign choices about who may be married.”

Windsor did not just mention state authority over marriage in a footnote. Windsor rhapsodized about it. Over sixteen paragraphs, the majority:

  • underscored that “the State’s power in defining the marital relation” was “of central relevance” to Windsor’s outcome;
  • confirmed that “[t]he definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations”;
  • emphasized that “[t]he significance of state responsibilities for the definition of marriage dates to the Nation’s beginning”;
  • wondered at DOMA’s “unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage”; and
  • condemned DOMA because its goal “was to put a thumb on the scales and influence a state’s decision as to how to shape its marriage laws.”

The Windsor majority said all that two years ago. Two years later, the same majority in Obergefell mentions none of it. Two years ago, the Windsor majority chastised Congress for trying to undermine a state’s authority to adopt same-sex marriage. Two years later, the same majority in Obergefell chastises the states for not adopting same-sex marriage. The Court giveth; the Court taketh away. How Obergefell squares with Windsor on this point is puzzling. As federal district judge Juan Pérez-Giménez remarked in a decision upholding Puerto Rico’s traditional marriage laws, “It takes inexplicable contortions of the mind … to interpret Windsor’s endorsement of the state control of marriage as eliminating the state control of marriage.”

Discounting democracy?

The amici states also warned that a decision constitutionalizing this issue would sweep away the value of the democratic process in states that have decided to confer marriage on same-sex couples. Over the past decade, proponents of same-sex marriage have achieved remarkable successes by convincing their fellow citizens that they have the better argument about the meaning of marriage. Despite numbering less than four percent of the population, in some five years they have used the political process to change marriage laws in Delaware, Hawaii, Illinois, Maine, Maryland, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington. That is a stunning feat.

In those states, removing the man-woman definition from marriage may well signify a cultural shift towards a new vision of marriage in those states. Take New York for example, which democratically adopted same-sex marriage in 2011. Windsor viewed this as an epochal event. What New Yorkers did, the Court explained, demanded “both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.”

Windsor appeared to view democratic deliberation on this issue as a valuable exercise. The Court, after all, praised New Yorkers for engaging in a “statewide deliberative process that enabled [them] to discuss and weigh arguments for and against same-sex marriage.” Two years later, however, we now know that the Fourteenth Amendment demanded all along that New Yorkers adopt same-sex marriage. In light of that, must we now downgrade Windsor’s praise of New York?  It turns out that New Yorkers were not adopting a new perspective on marriage based on their considered judgment about the meaning of marriage and equality. Instead, they were correcting an unjust defect in their marriage laws. How strange. Windsor was congratulating New Yorkers for engaging in a debate that – Obergefell now teaches – has only one right answer.

To be sure, Obergefell does not entirely omit mention of democratic debate. It gestures towards “referenda, legislative debates, and grassroots campaigns.” But the majority seems to say that these things are valuable only to give the Court an “enhanced understanding” of the issue, which it is now time to decide. That is an alarming theory of constitutional law. As Chief Justice John Roberts remarked in dissent: “In our democracy, debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will.”

Marginalizing dissenters

Finally, the amici states cautioned that a decision constitutionalizing same-sex marriage would send the harmful message that state citizens are incapable of resolving the issue. As the Court explained last year in Schuette v. Coalition to Defend Affirmative Action, removing a profound issue such as this from the hands of state citizens would be “demeaning to the democratic process.”

Regrettably, in the run-up to Obergefell, Schuette’s warnings had proven prophetic. In the wave of post-Windsor decisions striking down state marriage laws, citizens who did not support same-sex marriage were called “barking crowds” and compared to those who “believed that racial mixing was just as unnatural and antithetical to marriage as … homosexuality.” They were told that their marriage laws have “the same result” as interracial marriage bans. Their defense of marriage as grounded in the biological reality of procreation was mocked by one circuit judge who summed it up in this way: “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry.” They were lectured that their views are “callous and cruel” and should be “discard[ed] into the ash heap of history.”

This unsettling trend was also reflected in the lower courts’ frequent reliance on Loving v. Virginia. Man-woman marriage laws were repeatedly linked to the white supremacist laws correctly invalidated in Loving. That was troubling and unfair. Loving rightly invalidated anti-miscegenation laws, racist relics of slavery that struck at the heart of the Fourteenth Amendment. But, as the amici states stressed, those odious laws have nothing to do with the same-sex marriage debate. While the Fourteenth Amendment outlaws racial discrimination, the Supreme Court recognized in Windsor that the Constitution leaves citizens free “to discuss and weigh arguments for and against same-sex marriage.” It is laughable to suppose that Windsor would have praised New Yorkers’ deliberations for and against same-sex marriage if a refusal to recognize same-sex marriage was equivalent to racism.

In their brief, the amici states urged the Supreme Court to do what the lower courts had largely failed to do – treat Americans holding opposing views on this question as honorable participants in a debate over a question of profound civic importance. Did the Obergefell decision accomplish that? My initial read is that the opinion tried but failed.

On the one hand, the decision states that many who oppose same-sex marriage do so “based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” Yet, in the same paragraph, the majority goes on to say that, if those people enact their views into law, the “necessary consequence is to … demean[] or stigmatize[]” gays and lesbians. Similarly, the Court “emphasize[s]” that those with religious objections to same-sex marriage “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” The First Amendment protects those persons “as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Yet elsewhere the Court explains that laws based on the conviction that marriage is a man-woman institution “disparage” gays and lesbians, “diminish their personhood,” and are not “in accord with our society’s most basic compact.” And the Court repeatedly cites Loving as central to its outcome.

The four dissenting Justices highlighted these unfortunate aspects of the majority opinion. The Chief Justice lamented “the extent to which the majority feels compelled to sully those on the other side of the debate.” Justice Scalia remarked that the majority “is willing to say that any citizen” who does not support same-sex marriage thereby “stands against the Constitution.” Justice Alito wrote that the decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy,” and predicted this sort of social and legal fallout:

I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

One hopes Justice Alito is mistaken. One fears that – given the rhetoric and reasoning of the majority opinion in Obergefell – he may be proven right.

Posted in Obergefell v. Hodges, Obergefell v. Hodges symposium

Recommended Citation: Kyle Duncan, Symposium: Overruling Windsor, SCOTUSblog (Jun. 27, 2015, 2:38 PM), http://www.scotusblog.com/2015/06/symposium-overruling-windsor/