The Podium | Nancy Gertner

Court rulings a win for gay marriage, but will Congress respond?

Rainbow flags lined the courtyard at San Francisco’s City Hall after the Supreme Court ruled favorably on same-sex marriage in two cases.
AFP/Getty Images
Rainbow flags lined the courtyard at San Francisco’s City Hall after the Supreme Court ruled favorably on same-sex marriage in two cases.

Last week’s Supreme Court’s ruling striking down the Defense of Marriage Act is an unequivocal victory for marriage equality. Indeed, in some ways, the decision can be situated alongside the landmark gender and race equality cases of the last several decades.

Although the court’s rationale in the United States v. Windsor was not always clear — perhaps, intentionally ambiguous — it held that DOMA was unconstitutional in that it violated the equal protection of the law as well as bedrock principles of federalism. It violated equal protection because it unconstitutionally discriminated between legal marriages in certain states in which there was marriage equality without any no rational basis for the distinction. DOMA violated the principles of federalism because it failed to respect the laws of those states in which same-sex marriage was allowed. While the federal government is not without authority in this area, the definition and regulation of marriage has long been within the authority and realm of the states.

What the decision did not do was to invalidate the laws of the states that had rejected marriage equality. Indeed, as some commentators have said, just the opposite. The same federalism principles on which the decision is based appears to legitimize state choices rejecting same-sex marriage. Nor did the Court announce that same-sex marriage bans, or discrimination against homosexuals in general, must be subject to the kind of searching analysis that the Court uses on race-based classifications, what is described as “strict scrutiny,” or that the Court uses on gender classifications, “intermediate scrutiny.” (The higher the level of scrutiny, the less likely the classification survives.) In fact, it is no surprise then that some commentators describe the Court’s approach as one entirely consistent with the incrementalism of Justices Anthony Kennedy and Ruth Bader Ginsburg. (Justice Ginsburg has famously criticized Roe v. Wade because it moved “too far, too fast.”)


But surely the constitutional analysis in the case provides a template for legal challenges across the country. If DOMA did not meet equal protection standards, if it was based on inappropriate moral condemnations of the “homosexual lifestyle,” advocates will argue, surely the bans on same-sex marriage in this or that state will not pass muster either.

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The news, however, is not all good. It is important to stand the DOMA ruling next to other rulings the Supreme Court handed down last week. On Monday, the Court went a long way to making many of the anti-discrimination laws of this country irrelevant. In the ‘60s and ‘70s, the courts and the Congress understood that the discrimination against blacks and women would not go away just by the announcement: “Today, we repeal or invalidate laws that are explicitly racist or sexist! “ We created statutory enforcement mechanisms to eliminate discrimination in the employment, in public accommodation and in schools. We enacted civil rights laws, barring discrimination in a number of settings, and we empowered victims to enforce their rights in court. We chose to regulate the anti-discrimination laws largely through private lawsuits, not through a government agency. While not remotely perfect — discrimination against women and minorities was more intractable than anyone imagined — those laws went a long way to ameliorating the problems.

Similarly, the dismantling of same-sex marriage bars and the elimination of laws criminalizing homosexual conduct is critical, but it will not eliminate discrimination against the LGBT community. As in the case of women and minorities, that will require Congress to expand the coverage of the civil rights laws, and courts to carefully enforce those laws. But in the case of the courts, starting with Supreme Court and extending throughout the lower federal courts, we have seen just the opposite.

On Monday, in University of Texas Southwestern Medical Center v. Nassar, the Court held that retaliation claims, where the employer acts to disadvantage an employee who has complained about discrimination, are subject to a stricter standard of proof than other discrimination claims. The result is backwards; the protection against retaliation for making discrimination claims may well be more critical than the rules prohibiting the underlying misconduct. Prohibiting retaliation against a worker for his opposition to discrimination is fundamentally about insuring that worker’s access to the courts.

The law enables workers to assert the rights we have created, to know that when their employer takes steps against them when they have filed a complaint, the courts will look carefully at that conduct. Justice Ginsburg vigorously dissented. This was an entirely new take on discrimination. The courts had always considered retaliation to be a form of discrimination. The majority opinion had carved out a distinction that made no sense in terms of the language of the civil rights statute. And she called for Congress to reverse the Court.


In Vance v. Ball State University, the Court narrowly defined who counts as a supervisor for purposes of the anti-discrimination law. The distinction is critical: When a supervisor harasses someone, the employer is responsible. The Court held that a supervisor is someone with the power to take tangible employment actions against the victim, actions like hiring or firing. Someone who directs the day-to-day activities of a worker, who tells them what their workload should be, how to do the job, somehow does not count. And the facts of the Vance case were particularly egregious, harking back to the early cases of discrimination — those non-supervisors made reference to the Ku Klux Klan, called the plaintiff the “n” word, or “Buckwheat” and “Sambo,” even physically assaulting her. Again Justice Ginsburg could not have been clearer in dissent: The majority decision, she said, “ignores the conditions under which members of the work force labor, and disserves the objective of Title VII [the Civil Rights Act] to prevent discrimination from infecting the Nation’s workplaces.” And again, Justice Ginsburg called on Congress to remedy the situation.

The pattern seems to be this: The Supreme Court will act against overt discrimination, the “no blacks need apply,” or “men only” jobs, and now a law that explicitly discriminates between same-sex couples and others. The laws on the books must be non-discriminatory, as it should be. But there it ends. When it comes to really eliminating discrimination in the workplace, in the schools — discrimination that is no longer reflected in banners and signs, that is not so clear but nevertheless pernicious, discrimination which early courts well understood – that’s a different matter. This Supreme Court raises the bar higher and higher. Will Congress respond? That — to put it mildly — is an open question.

Nancy Gertner is a former US District Court judge.