So is gay marriage constitutional or what?

By Tom Watts

In light of the Virginia gay marriage decision last week, Bostic v. Rainey, it seems appropriate to revisit the constitutional status of gay marriage. The courts have moved rapidly on this issue, and a summary from even a year ago would do little justice to the current situation.

As Slate has pointed out, gay rights have done well in the courts since the Windsor case. Windsor was not easy to construe at the time, because, as Professor Joslin noted shortly after the case, “the opinion in Windsor does not neatly fit into any previously established analytical scheme.” The dissents disagreed over the significance of the majority’s opinion. Justice Scalia felt that it was clear that the reasoning in the decision (which he also described as “legalistic argle-bargle”) was tantamount to declaring unconstitutional all state gay marriage bans, though he encouraged lower courts to distinguish the decision as best they could. Chief Justice Roberts, on the other hand, believed that the majority’s “analysis leads no further.”

Since then, the emerging consensus view is that Justice Scalia was right: given the views expressed in Windsor, no discrimination on the basis of sexual orientation can stand. In Bostic, the judge quoted Justice Scalia’s dissent favorably (though undoubtedly with some irony). In the comparable Utah case, Kitchen v. Herbert, decided in December, the judge wrote, “The court agrees with Justice Scalia’s interpretation of Windsor.” Appeals are pending, but the unanimity of the courts so far is remarkable.

The consensus reading of Windsor is a fair one. Despite some wandering into the land of federalism, Windsor ultimately was decided on due process and equal protection grounds, and it is hard to see why state discrimination against same-sex marriages would be any less a violation than federal discrimination is. Nonetheless, it’s hard not to see a little of Professor Klarman’s notion of the courts tracking society in these decisions. Public opinion has changed radically in the last twenty years, and now a strong majority of Americans support same-sex marriage. Judges, being members of society, presumably are not immune to the same changes in opinion, which suggests that a lot of (perhaps even most) judges believe that same-sex marriage ought to be legal. For such judges, Windsor now gives cover: it is at least plausible that the Supreme Court has said that same-sex marriages must be legal under the Constitution, so judges who would like to read the law this way can do so.

A final lesson is clear from Kitchen and Bostic. The Supreme Court may have thought that it dodged deciding the issue of state gay marriage bans when it avoided the merits of Hollingsworth v. Perry on procedural grounds, but the odd result of Perry is that the surviving decision is the district court decision, which found a constitutional right to marry even before Windsor. Also, after a bench trial, the judge in Perry made extensive factual findings, and both Kitchen and Bostic cite to Perry repeatedly. Had the Supreme Court upheld the much narrower Ninth Circuit opinion in Perry, the district court’s opinion might have had less attraction. Thus, peculiarly, the Supreme Court’s dodge in Perry may have encouraged the consensus reading of Windsor, which will bring the issue back to the Supreme Court sooner than it otherwise might have.

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