‘These opinions about fairness’
WASHINGTON — The Supreme Court handed gay marriage backers big victories on Wednesday in decisions that tell us the high court is more interested in the consistent application of law than in deciding who we should love.
The justices ruled 5-4 in two cases — one striking down the part of the Defense of Marriage Act that banned federal benefits to gay couples, the other clearing the way for gay marriage to resume in California — with the makeup of the majorities scrambled.
In the DOMA case the majority consisted of Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, Stephen Breyer and Anthony Kennedy. The first four were appointed by Democratic presidents.
In the case dealing with California Proposition 8 the majority included Ginsburg, Kagan and Breyer and two justices tapped by GOP presidents: John Roberts and Anthony Scalia. The surprise was Sotomayor siding with Republican appointees Kennedy, Samuel Alito and Clarence Thomas.
To contrast these mixed lineups, consider that the justices broke 5-4 along party lines in the Tuesday ruling that voided key parts of the 1965 Voting Rights Act, with the GOP appointed justices making up the majority.
I turned to Stephen Wermiel, an American University law professor and Supreme Court scholar, to test my law and love analysis in the pair of rulings — and ask if the mixed lineups in the gay marriage cases showed the court was undergoing some ideological shifts or forming new alliances.
The lineups “may be somewhat unique to the peculiarities about these cases,” said Wermiel.
“I won’t say there is nothing in the opinions that are important to the sort of philosophical debate, there is,” Wermiel told me.
“But yes, I think these opinions are about fairness and equal treatment under the law,” he said. “The court is not by any means saying that the Constitution has to protect same-sex marriage or that every state has to recognize samesex marriage, far from it.” Indeed, at the heart of the DOMA decision, written by Kennedy, is the conclusion that the law violated equal protection guarantees and “forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.”
And the essence of the California decision turned on standing, that is, who by law could bring the case to court. The decision, written by Roberts, said only California officials could file a federal lawsuit deciding on the legality of Proposition 8, which defined marriage in California as between a man and a woman.
“Standing in federal court is a question of federal law, not state law,” Roberts wrote.
As for Sotomayor — who I see as sympathetic to gay marriage — we just don’t have enough tea leaves to see her vote as anything more than a different view on the issue of standing causing the break with her usual voting bloc.
What do these rulings portend for the future?
Said Wermiel: “Treating samesex marriages differently as a matter of law is now harder to justify without some really, really good reason.”