Careful Consideration of Hypocrisy: The Supreme Court’s Token Gestures on Gay Marriage

In our discussion of the murder of the Voting Rights Act, we drew attention to the hypocrisy of the Chief Justice, who had based his tactical decision to endorse the constitutionality of Obamacare’s individual mandate on the concept of judicial restraint but then threw that concept out of the window in order to usher in a new era of racial discrimination. In the Supreme Court’s decision to invalidate Section 3 of the Defense of Marriage Act (DOMA), handed down a mere day after the gutting of the Voting Rights Act, the hypocrisy of the so-called conservatives on the Court was even more brazen, and deserves to be memorialized every bit as much as the grudgingly pro-gay outcome. We say “grudgingly” because the Court’s two decisions were decided on narrow, procedural grounds that firmly eschewed the opportunity to establish a broad and fundamental constitutional right to gay equality. And consideration of the means employed by the Court exposes an equally glaring, if less consequential, hypocrisy in the predictably hysterical response to the decisions by the propagandists of the American right. Both Cal Thomas and Star Parker shrieked that the Court’s decisions were attacks on traditional morality rooted in the scripture, foretelling dire consequences for American civilization. But both of these self-appointed guardians of the common weal conveniently overlooked the conservative principles at work in the decisions and grossly exaggerated the extent of their “defeat,” a tactic deployed after the Obamacare decision one year ago. While their obvious homophobia serves a useful coalition-building purpose for their plutocratic masters, it bears a striking resemblance to the intolerance of fundamentalist Islam and disingenuously distracts the American people from infinitely greater threats to society.

Conservative Means to Liberal Ends?

The Importance of the Level of Review

The Defense of Marriage Act (DOMA) was enacted in 1996, providing further evidence, as if any were really needed, of Bill Clinton’s political perfidy. The legislation defined marriage as strictly between one man and one woman for the purpose of handling the thousand-plus federal issues, such as tax filing status and Social Security benefit eligibility, where marital status is relevant. In United States v. Windsor, Justice Anthony Kennedy joined the Court’s four liberals to invalidate the core of DOMA. There are three aspects of Kennedy’s majority opinion that need to be seen as conservative markers instead of liberal licentiousness.

Justice Anthony KennedySince the statute discriminated against an identifiable class of people, its constitutionality was evaluated using a form of equal protection analysis. Although the Equal Protection Clause appears in the 14th Amendment and originally applied to the states, an equal-protection component has been read into the Fifth Amendment1 in order to apply similar standards to the federal government as well. As Professor Scott Lemieux has neatly summarized, there are three levels of review in equal protection cases. Classifications based on race are subject to strict scrutiny, a test that few measures survive. Economic regulations generally need nothing more than a rational basis and are seldom struck down. Gender-based classifications enjoy an intermediate level of review, or “heightened” scrutiny, that presumes the legislation is suspect but is not as demanding as strict scrutiny. In the Windsor case, the Obama Administration (which has little to lose by appearing pro-gay) urged the Court to apply intermediate review to DOMA, and treat sexual-orientation measures the same way as gender-based measures. Importantly, the Court refused to do so: though it may have moved ever so slightly in that direction, it accords gay Americans little more judicial protection than hamburgers. As professor Lemieux explains:

Kennedy cited his own rational basis justification for striking down an anti-LBGT Colorado ordinance…. Kennedy’s standard seems to be “rational basis with teeth” as opposed to the less stringent rational basis review that applies to economic regulations. Repeating his earlier formulation, Kennedy argued that “‘[d]iscriminations of an unusual character especially require careful consideration.” “Careful consideration” is something more than rational basis but something less than heightened scrutiny. This is relevant going forward because state bans on same-sex marriage almost certainly cannot survive heightened scrutiny but might survive rational basis review, so it’s not clear what the DOMA decision means for same-sex marriage bans at the state level.

Contrary to the wails emanating from America’s Christian fundamentalists, the prospects for gay-marriage bans at the state level look very good indeed, for while Justice Kennedy found no rational basis for Congress to discriminate against gay married couples, a major part of his reason for doing so was that marriage is traditionally the purview of the states.

Once More with Different Feelings: Federalism

In Shelby County v. Holder, the Court’s conservatives invalidated Section 4 of the Voting Rights Act because it interfered with what they (incorrectly) considered to be a more important state power to regulate elections. This was the conservatives’ old friend, federalism, or states’ rights, run amok. It is crucial to note that in the Windsor case, Justice Kennedy and the liberals also used federalism concerns to invalidate a federal statute, just as the conservatives did in Shelby, but had a very strong case for doing so instead of no case at all.

Thus, when Justice Kennedy held that “a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group,” his analysis of DOMA “carefully considered” the following:

“The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State,” he continues. “DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper.”

Professor Adam Winkler elaborates:

One of the main problems with DOMA, [Kennedy] writes, was that Congress, in a blunderbuss fashion, restricted the rights of same-sex couples to more than 1,000 federal benefits and programs that opposite-sex couples enjoy. In doing so, Congress interfered with the state’s traditional authority to regulate marriage. Regulation of marriage “is an area that has long been regarded as a virtually exclusive province of the States.” DOMA, Kennedy explains, “because of its reach and extent, departs from this history and tradition.”

This language may be celebrated today, but by emphasizing respect for tradition, the court may have sent a signal to lower courts that limiting marriage to one man and one woman remains constitutionally permissible. After all, allowing marriage only between one man and one woman is a longstanding tradition. If a central part of DOMA’s problem was its deviation from longstanding practice, then a state ban on same-sex marriage would not seem to pose the same problem. Moreover, Kennedy’s ode to states’ rights is hardly a boon to marriage-equality proponents. Mississippi and Alabama’s authority to define marriage as they see fit appears to be given constitutional protection.

There is a parallel here that should not be missed, especially when considering the fulminations of those who consider themselves more moral than the rest of us. By leaving the definition of marriage firmly in the hands of the states, Kennedy has accomplished exactly the outcome that the right-to-life movement wishes to bring about in the abortion arena. Without Roe v. Wade and related cases protecting the woman’s right to choose from state law, abortion would be returned to the shifting sands of local variation, just as it was prior to Roe. In yet another great right-wing irony, this primacy of the states is desirable in the case of abortion yet detestable in the case of gay marriage. Apparently, an overbearing federal government can be quite useful at times, but we shall not hold our breath waiting for Cal Thomas or Star Parker to concede the point.

The federal patchwork quilt created by Windsor leaves married gay couples to face several dilemmas, the most obvious of which is what will happen when they move from the jurisdiction that recognized their marriage to one that does not. At the federal level, this could be solved in much the same way as it already is for couples who move from states that allow common-law marriage. For example, if a couple moves from Texas, where common-law marriage is allowed, to Florida, where it is not, the IRS continues to allow common-law married couples to file married-filing-jointly. But it is not difficult to imagine such issues becoming political hot potatoes with every change of administration. And at the state level, Kennedy’s federalism concerns would seem to allow states to ignore gay marriages they did not sanctify. Moreover, Section 2 of DOMA, which was not struck down, explicitly allows the states to refuse to recognize gay marriages from other jurisdictions. This leaves gay spouses at a great disadvantage in numerous areas other couples take for granted, such as making health care decisions for a sick spouse and inheriting property if a spouse dies intestate. Conservatives wishing to engage in a little homophobic schadenfreude still have plenty to work with here and should stop feeling so sorry for themselves. Gay couples remain second-class citizens in most of the Union.

The DOMA decision, then, is a fascinating case of liberal ends resulting from an application of conservative means. Beyond the practical limits to the victory enjoyed by the gay community, conservatives ought to note Justice Kennedy’s refusal to take equal-protection analysis into liberal territory, his obvious respect for the states, and his equally clear nod to the ultimate conservative meme, tradition. While the Court’s liberals may well have wished to go further, Kennedy, as the “swing vote,” is the limiting factor, much as Sandra Day O’Connor used to be. And this brings us to the other gay-marriage decision handed down by the Court, Hollingsworth v. Perry.

Standing at the Center: Another Clever Gesture from the Chief

Perry involved the constitutionality of California’s Proposition 8, a ballot initiative that proscribed gay marriage. A federal district court had enjoined its enforcement on equal-protection grounds, and liberal activists hoped the Court might take the opportunity to establish a constitutional right to gay marriage. Instead, in a deft procedural move that had the Chief Justice’s fingerprints all over it, the Court declined to reach the merits of the case and simply dismissed it on the grounds that the group defending Prop 8 lacked standing to sue. This allowed the district court’s decision to stand, and effectively makes gay marriage legal (again) in California. Perry therefore did nothing to advance gay rights outside California, though one might argue that the state’s size and cultural influence make this a particularly important policy laboratory.

But beyond the issue of its reach, Perry is noteworthy for the odd voting behavior of the Justices. In this case, the majority opinion was written by Chief Justice Roberts, joined by one conservative (Scalia) and three liberals. Justice Kennedy dissented along with the liberal Sotomayor and arch-conservatives Thomas and Alito. What was happening here?

The Chief Justice’s use of the technicality of standing succeeded in Perry but had not been able to garner enough support in Windsor. In both cases, the plaintiff challenging the constitutionality of the anti-gay measure, whether DOMA in Windsor or Prop 8 in Perry, had prevailed in the lower courts, and the respective governments were not interested in defending the measures on appeal. For the conservatives in Windsor, this meant that there was no longer a live dispute and therefore nothing to adjudicate. If the Court had refused to rule on the merits of DOMA, the plaintiff would have won her case, but DOMA itself would have lived to fight another day, perhaps reinvigorated by a future, Republican administration. The concession to gay marriage would have been limited to a single individual. Kennedy, however, argued that DOMA was still affecting many other participants in federal programs and wanted to reach the merits.

In Perry, it appears that Kennedy wanted to reach the merits again, but the liberals who signed on to the Chief Justice’s approach seem to have been wary of where Kennedy was going to take them. In this case, Roberts’ approach has a far greater impact than it would have done in Windsor, making the outcome more appealing to the liberals. The interesting question, besides the apparent rift in the Kennedy-liberal axis, is why Roberts pursued the standing angle so assiduously and broke with Thomas and Alito, who would have been happy to affirm the validity of Prop 8 and overturn the district court’s ruling.

In this respect, Perry is somewhat reminiscent of the Obamacare decision, in which the Chief Justice surprised and dismayed many conservative commentators but did so for astute reasons of institutional positioning. A ruling against Obamacare risked undermining the Court’s legitimacy, possibly jeopardizing its ability to remain at the center of the plutocratic project. (Obamacare itself, though most Republicans would never admit it, creates vast profit opportunities throughout the health-The Chief Justiceinsurance industry.) Besides, as we noted last year, the Obamacare decision was two-thirds conservative in any case. In Hollingsworth v. Perry, Chief Justice Roberts has once again shown that he has his finger very much on the pulse of the polity. He knows that opinion polls show widespread and growing acceptance of gay marriage. In legalizing gay marriage in California on a technicality, he has sidestepped the possible creation of a constitutional right to gay marriage and left the Court at liberty to weigh in at a later date, keeping all other actors in the political system dependent on the Court for guidance. This scores some popularity points for his institution while simultaneously bolstering its relevance and power. Besides this, however, ensuring that the rules on standing remain restrictive (and many observers feel they are too restrictive already) keeps non-governmental actors out of the power-distribution games played by the judiciary. That principle seems to have been important enough to attract Justice Scalia to the Chief Justice’s side in Perry, which, as we shall now see, was no mean feat.

A Fully Legal Marriage Between Hypocrisy and Homophobia

While Justice Scalia is generally regarded as a powerful intellectual force and is even admired by some liberals for principled stands on certain civil liberties issues (most recently, the Fourth Amendment case of Maryland v. King, where he dissented from the Court’s holding that DNA swabs were no more intrusive than fingerprinting), in U.S. v. Windsor his homophobia led him to burn up an extraordinary amount of credibility. A mere 24 hours after participating in one of the Court’s most appalling and unjustifiable indulgences of activism, Scalia expected to be taken seriously when he bemoaned judicial activism:

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.[…]

It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role.[…]

As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe. By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.

Is this the same human being who gutted the Voting Rights Act, a key piece of legislation enacted by large majorities of both houses of a (supposedly) democratically elected legislature? Was he not part of the very majority that supplanted Congress’s opinion about the appropriateness of preclearance, and then failed to provide Congress with a clear set of criteria for drafting something that the Court, in its infinite wisdom, would deign to find appropriate? And did he even read Justice Kennedy’s very clear invocation of tradition in Windsor itself?

When one of the sharpest minds in the country can blow so many fuses in such spectacular style, there is really little point wasting any time considering the carefully targeted outrage of the pundits. Scalia has done a sterling job reminding us all of the depth of the animus toward groups of Americans who happen to be different in some respect that has nothing to do with their innate goodness or their worth as human beings. Unfortunately, the Court’s decisions in favor of today’s second-class citizens (gays) can never make up for the injury just inflicted on America’s seemingly perennial second-class citizens (minority voters). In this larger equal-protection context, the Court’s overall thrust remains decidedly regressive, its token gestures almost insulting in their back-handed reluctance to make even meager concessions. And if we fail to perceive that larger context, then token gestures are all we’ll ever get and all we’ll ever deserve.


  1. This form of “reverse incorporation” was first used by the Court in Bolling v. Sharpe (1980).

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