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In same-sex marriage, Supreme Court walks a middle road

In its two decisions that benefit same-sex marriage, the Supreme Court neither remains silent nor makes a definitive ruling. Instead, it demonstrates its power to participate in ongoing public discourse about a controversial social issue, without drowning out further debate.

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But in United States v. Windsor, the DOMA case, the majority spoke in clear and ringing tones. While avoiding a direct decision on the constitutional issue, the court embraced same-sex marriage, employing the same appreciative language for same-sex couples that it used to describe traditional forms of familial connection.

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The majority opinion of Justice Anthony Kennedy repeatedly invokes the “dignity” of same-sex couples and criticizes DOMA for divesting “married same-sex couples of the duties and responsibilities that are an essential part of married life.” Justice Kennedy decries the federal statute for demeaning “the couple, whose moral and sexual choices the Constitution protects.”

And yet, the court limits it ruling to marriages recognized by state law. Congress cannot discriminate against these state-sanctioned unions, the court holds. The court does not answer the central question of whether states, themselves, can limit marriage to opposite-sex couples. The inference from the court’s opinion, though, seems clear. If the federal government cannot “discriminate” against same-sex marriages, state “discrimination” seems similarly suspect.

The import of the court’s language was clear to Justice Antonin Scalia. His vituperative dissent derides the court for duplicity in implying a federal right to same-sex marriage, while claiming to decide only the much narrower question of federal deference to state marriage law.

Justices Kennedy and Scalia have been down this road before. In Romer v. Evans in 1996, Justice Kennedy wrote the court’s opinion striking down a Colorado law based on its animus against homosexuals. Justice Scalia dissented, accusing the court of disingenuously ignoring the broader implications of its decision.

Those implications were later realized in Justice Kennedy’s opinion in Lawrence v. Texas in 2003 establishing a right to same-sex sexual intimacy. In his dissent in Lawrence, Justice Scalia claimed that the court was setting the stage for a constitutional right to same-sex marriage.

In this area, Justice Kennedy has led the court on a slow and steady path, insisting on the equal dignity of gays and lesbians, while moving cautiously in promulgating federal constitutional commands. We will see if Justice Scalia is correct about where this path will lead. In the meantime, even without a federal right, the court’s rhetoric of dignity and equality stands strong.

Robert A. Schapiro is dean and Asa Griggs Candler professor of law at Emory University School of Law.


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