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Are judges in gay marriage cases reading the tea leaves right?

Justice SystemMarriageSame-Sex MarriageDefense of Marriage ActJohn G. Roberts, Jr.Proposition 8 (California, 2010)Anthony Kennedy
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On Tuesday, my native Pennsylvania became the latest state to have its ban on same-sex marriage declared unconstitutional by a judge. Like other jurists before him, U.S. District Judge John E. Jones cited (among other precedents) the Supreme Court’s 2013 decision in U.S. vs. Windsor. That ruling invalidated a section of the Defense of Marriage Act that defined marriage for federal purposes as the union of a man and a woman.

But here’s the catch: The Windsor decision didn’t hold that state bans on same-sex marriage violated the Constitution. In fact, on the same day that Windsor was decided, the justices sidestepped a ruling on the constitutionality of bans on same-sex marriage by holding that supporters of California’s Proposition 8 lacked standing to appeal a decision similar to Jones’.

When a previous court decision is identical to a pending case, lawyers like to say that the new case is “on all fours” with the old one. At best, the issue before Jones shared only a couple of legs with the question in the DOMA case.

In his majority opinion in Windsor, Justice Anthony M. Kennedy indeed wrote that DOMA’s refusal to recognize the marriages of same-sex couples in states where such unions were legal “impose[s] a disadvantage, a separate status, and so a stigma upon same-sex couples.”

But Kennedy’s opinion also discussed — one could even say belabored — the fact that traditionally states have had the authority to define marriage. “The significance of state responsibilities for the definition and regulation of marriage dates to the nation’s beginning,” Kennedy wrote.

Lest this point be overlooked, Chief Justice John G. Roberts Jr. hammered on it in his dissenting opinion: “The court does not have before it, and the logic of its opinion does not decide, the distinct question of whether the states, in the exercise of their historic and essential authority to define the marital relation, may continue to utilize the traditional definition of marriage.”

To put it charitably, Kennedy’s opinion was ambiguous. So one would think that in applying it, judges in lower courts would split more or less evenly between those who regarded Windsor as a states’ rights case and those who saw it as a case about due process of law or equal protection of the laws, or an amalgam of the two constitutional guarantees. (The official syllabus or summary of Windsor says that DOMA violated the “equal liberty” of gay couples.)

In fact, same-sex marriage has won victory after victory in the lower courts. So does that mean that Kennedy’s opinion wasn’t as confused as critics (including The Times editorial page) maintained?

I don’t think so. In holding that gays are a “quasi-suspect” class deserving of heightened judicial scrutiny, Jones admits that that conclusion isn’t endorsed explicitly in Kennedy’s opinion; but he discerns it in “the tea leaves of Windsor.” The same term can be applied to the Windsor opinion as a whole.

Reading tea leaves isn’t a straightforward exercise in interpretation; inevitably, it’s informed by the tea readers’ values and those of the larger society. In the case of same-sex marriage, both elite and popular opinion have been moving dramatically in the direction of acceptance (and a good thing too). That fact may be a better explanation of the winning streak of same-sex marriage in lower courts than any clear guidance from Windsor.

Copyright © 2014, Los Angeles Times
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Justice SystemMarriageSame-Sex MarriageDefense of Marriage ActJohn G. Roberts, Jr.Proposition 8 (California, 2010)Anthony Kennedy
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