I have just finished reading Justice Kennedy's majority opinion in this morning's Supreme Court decision to strike down the Defense of Marriage Act. And it is a historic decision. At first blush, it appears - and it is, for the time being - a decision focused on refusing the federal government the power to treat differently different married couples within a state that recognizes same-sex marriages. But it is more than that. Note this part:
2. DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. [...]In the detailed opinion, it is mentioned again:
Subject to certain constitutional guarantees, see, e.g., Loving v. Virginia, 388 U. S. 1, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States,” Sosna v. Iowa, 419 U. S. 393, 404.
State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U. S. 1 (1967); but, subject to those guarantees, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.”So yes, the court is affirming that defining marriage has been, and remains, a "virtually exclusive" right of the state. The court is also careful to confine the ruling to legally married couples in the states that allow it, and it says that DOMA violates the fifth amendment right of those couples. Nonetheless, the majority opinion asserts, in no uncertain terms that a state's right to make such definition is not limitless. It's virtually exclusive, not entirely exclusive. That prerogative of the state is enough to invalidate DOMA, but warned the court, that prerogative is not without its limits - that those too are subject to certain Constitutional guarantees. What kind of guarantees? Those set forth in Loving v. Virginia.
That is an important decision to refer to here, and not simply because of the emotions, righteousness and moving forward that the Loving decision represents. Remember that the Lovings actually did not marry in the state of Virginia - where interracial marriage was illegal. They in fact married in DC and moved back to Virginia to live. The state tried to enforce their discriminatory law against the Lovings, which ultimately ended up bringing us the decision that eliminated state bans against interracial marriages forever.
Take that analogy in this case. What if a gay couple married in New York moves to Texas and tries to file a joint tax return or obtain other state benefits of married couples? When they are denied, will they have a case in the federal courts, pointing specifically to this decision by the Court today stating that state laws that regulate marriage are nonetheless subject constitutional guarantees such as those included in the Loving case? The couple would still have to make the case of course that same sex couples are as deserving as a class of protection as interracial couples, but that might not be too difficult either.
The Court ruled today that DOMA violated same-sex married couples' fifth amendment rights to liberty, and in doing so, specifically defined sexual orientation as a class that deserves to have laws against it looked at with at least some level of scrutiny. Justice Kennedy, writing for the majority, concluded that marriage is not like any other thing in state law, and as such, persons granted (or denied) that right are not merely subject to routine classification.
The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits.[...] This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.The majority quite cleverly both limited this decision to this case and also explicitly stated that marriage laws are not like most other laws, and thus implied that who is included in it and who is excluded from it deserve legal scrutiny, specifically invoking the Loving case for precedence. With the right case, the next step may well be (and probably will be) the court applying the 14th amendment's protections to same sex couples in the same way Chief Justice Warren did to interracial couples.
Much of the legal analysis - including that of Melissa Harris Perry on MSNBC - portrayed the Court's DOMA decision as just another link in the chain of this Court's propensity to weaken federal government's power to curtail state authority. It is with that thread that Perry linked yesterday's atrocious decision on the Voting Rights Act with today's decision on DOMA.
Having made the above case, however, I beg to differ. The court answered a specific question as to whether the federal government had the right to pre-empt the state's prerogative on marriage and decide that it would not recognize as married those whom a state declared to be married. But it wasn't removing federal authority - in this case, it was removing the federal government's ability to discriminate. It in fact re-iterated the federal Constitution's broad reach (rather the conservative approach of narrow reach) and reminded the states that their marriage laws could not trump fundamental protections of the that broad reach.
This decision is historic, not simply because of its immediate impact and the vindication of loving relationships everywhere. It is historic in a very different sense. This is a broadly written decision invoking human freedom and reminding states of their limits that will be used in the future to expand rights until we reach full marriage equality for everyone in the United States.