Last year, when the Supreme Court invalidated Section 3 of the Defense of Marriage Act (DOMA) in United States v. Windsor, Justice Kennedy’s majority opinion for the Court rested on two grounds: First, as a general matter, federal law simply incorporates state family relations law; and second, the sorts of justifications that were offered to defend the departure from that usual approach when it came to same-sex marriage (SSM) were not only weak, but rooted in illicit prejudice against gay and lesbian couples.
Those two factors—respect for state sovereignty and the equal dignity of LGBT Americans—pointed in the same direction in the Windsor case. However, it was not clear to everybody which factor would prevail in a case in which they pointed in opposite directions, that is, in a challenge to a state law forbidding same-sex marriage. The Court had before it such a case when it decided Windsor—the challenge to California’s Proposition 8—but a majority dismissed the appeal in that case on jurisdictional grounds.
Implications of Windsor for State Bans
So, what does Windsor imply for challenges to state bans on SSM? In Windsor itself, two Justices who disagreed with the majority’s ultimate ruling also disagreed with each other about its broader implications. Chief Justice Roberts thought that the key to Windsor was federalism, so that just as Congress had to respect a state’s decision to permit SSM, the federal courts would be obligated to respect a state’s decision to forbid SSM.
Justice Scalia agreed that it would be possible for lower courts facing challenges to state SSM bans to “distinguish away” Windsor as resting on federalism grounds, but he also thought that the majority’s own reasoning implied that his colleagues would extend the Windsor holding to invalidate a state ban in some future case, if and when they sense that they “can get away with” doing so.
In the wake of Windsor, Court watchers argued over which interpretation was better. For what it is worth, I disagreed with the Chief Justice. I took the Windsor majority to be saying that, in light of the general practice of congressional incorporation of state domestic relations law, one must view with suspicion a wholesale departure from that practice. Congress could have had an innocent reason for overriding state definitions of marriage or some other matter of domestic relations: national uniformity, for example. But in fact Congress’s real reason was the conviction that same-sex relationships are inferior to opposite-sex ones. Because state laws banning SSM act on that same equality-denying motive, they too should be invalid under the Windsor logic.
Lower Court Consensus
I have been a longtime proponent of marriage equality, so it may not be surprising that I would read Windsor as tilting in that direction. More surprising is what has happened in the lower courts in the eleven months since Windsor was decided: every single judge to rule on the question has relied on Windsor for the conclusion that SSM bans are unconstitutional.
To be sure, one or more of those rulings could be reversed on appeal, and even if not, there is a fair chance that at least one federal judge will rule against a constitutional right to SSM. For example, in the oral argument before the U.S. Court of Appeals for the Fourth Circuit earlier this month, Judge Paul Niemeyer sounded unlikely to vote to sustain the district court’s ruling invalidating Virginia’s SSM ban.
But even if Judge Niemeyer dissents from a pro-SSM ruling, or even if his court or another court reverses one of the rulings finding a right to SSM, the writing is on the wall. For the most part, even judges appointed by Republican presidents considering SSM bans in very conservative states now regard SSM as a constitutional right.
Lower Court Judges as Legal Barometer
Well, so what? Eventually, the issue will be resolved by the U.S. Supreme Court, which is not bound by lower court decisions. On questions of law, the Supreme Court reviews lower court decisions de novo, that is, without giving any deference to the lower courts.
Nonetheless, the lower court decisions embracing the marriage equality interpretation of Windsor could be influential in the Supreme Court. Lower court rulings act as a barometer of what is legally plausible.
Consider an analogous legal issue with the opposite political valence. When conservative lawyers argued that the individual mandate of the Affordable Care Act (ACA) was beyond the power of Congress under the Commerce Clause, most mainstream constitutional scholars—including me—initially dismissed the challenge as far-fetched. Health care is a multibillion dollar industry, we noted, and thus regulable by Congress. However, once several lower federal court judges actually voted to strike down the ACA, the argument had to be taken seriously. And eventually, a majority of the Supreme Court accepted it (although a different majority ended up sustaining the ACA under the power of Congress to lay and collect taxes).
Likewise with SSM. In 1970, two men unsuccessfully sought the right to marry in Minnesota. Two years later, all of the Justices of the U.S. Supreme Court thought the claim so far-fetched that they affirmed the Minnesota Supreme Court ruling without even bothering to write an opinion. As recently as 2003, when the Supreme Court invalidated a state law forbidding same-sex sodomy in Lawrence v. Texas, Justice Kennedy’s majority opinion was careful to state that the case was not about a right to formal state recognition of any relationship—i.e., that it was not about marriage.
Later that same year, when the Massachusetts Supreme Judicial Court found a right to SSM based largely on the logic of Lawrence, that court was careful to rest its holding solely on the state constitution, not the federal one. And for several years thereafter, lawyers and judges alike couched their arguments for a right to SSM in terms of state, rather than federal, constitutional principles.
Since Windsor the floodgates have opened in the lower courts, with lawyers no longer afraid to bring suits seeking a federal constitutional right to SSM, and judges no longer afraid to rule in their favor.
Lower Court Judges as Conduits of Public Opinion
To say that the law changed between the early 1970s and the present would be accurate but incomplete. The law changed in the sense that judges and lawyers came to understand that attitudes once taken for granted—such as the view that marriage is an exclusively heterosexual institution—denied people in same-sex couples their constitutional entitlement to equal protection.
But of course that change in understanding by judges and lawyers was part of a much broader shift in the culture. Like the civil rights movement and the women’s rights movement before it, the LGBT rights movement succeeded (as much as it has) through a combination of multi-front activism, not only targeting politicians, judges, and other opinion leaders, but also changing hearts and minds one at a time.
Justice Scalia was correct in 2003 in his dissent in Lawrence, and again in 2013 in his dissent in Windsor, when he said that the logic of the majority opinions should lead to a constitutional right to SSM. He may have meant the point as a kind of reductio ad absurdum, but whatever his intentions, something else was probably afoot: One or more of the Justices in the Lawrence majority and perhaps all of the Justices in the Windsor majority already thought that, properly construed, the Constitution protects a right to SSM; however, they were reluctant to say so at the time because they did not want the Court to get too far out ahead of public opinion.
The lower court consensus that has emerged since Windsor shows that worry to be greatly diminished now.
Reactions to the lower court rulings are also instructive. Some states are pursuing appeals, but others are not. Before his presidential hopes were complicated by the George Washington Bridge scandal, New Jersey’s Republican Governor Chris Christie abandoned an appeal of a state court ruling in favor of SSM. And just last week, Pennsylvania’s Republican Governor Tom Corbett announced that he would not appeal a federal district judge’s ruling invalidating that state’s SSM ban. Although Corbett said he thought that appealing would likely be futile, it is hard to believe he did not also have public opinion in mind, as he is currently in the midst of a re-election campaign.
By the time the U.S. Supreme Court rules on the constitutionality of state SSM bans—probably about a year from now—there will no longer be much risk that recognizing a right to SSM will put the Court out of step with the country. By then it will be clear, as it is already clear to every judge to have ruled since Windsor, that it is, in Justice Scalia’s peculiar phrasing, possible for the Justices to “get away with” the long-overdue recognition that SSM bans violate the constitutional guarantee of equal protection of the laws.