Over the short term, Wednesday’s US Supreme Court ruling striking down a portion of the Defense of Marriage Act should resolve a long list of injustices to same-sex partners who are legally married. No longer will they be subjected to federal taxes from which opposite-sex couples are exempt, be denied federal retirement benefits routinely granted to opposite-sex spouses, or be kept apart by immigration rules. And no longer will Massachusetts and local employers be burdened by having to treat same-sex couples one way for state purposes and another way for federal purposes.
Yet in writing for a five-justice majority, Justice Anthony Kennedy didn’t simply force the federal government to honor states’ traditional autonomy over marriage and family law. He also set forth a broad, persuasive argument that can only result, over the course of time, in same-sex couples being allowed to marry nationwide — even as he avoids forcing the issue now.
Plaintiff Edith Windsor of New York had a legitimate grievance: Spouses generally aren’t subject to estate taxes. But when her wife died, Windsor had to pay $363,053 because of the 1996 federal law that prohibits the federal government from recognizing same-sex marriages even if individual states did. In his ruling, Kennedy concluded that the principal purpose of that ban is to “demean those persons who are in a lawful same-sex marriage,” and argued that the Fifth Amendment forbids the government to “degrade or demean in the way this law does.”
The opinion takes pains to say it only covers couples legally married in states that allow same-sex marriage. Yet Kennedy’s logic calls into doubt state-level prohibitions on same-sex marriage. Indeed, Justice Antonin Scalia, in a dissent, even identifies long passages of the majority opinion that might be used in some future ruling. He goes on to declare, “no one should be fooled; it is just a matter of listening and waiting for the other shoe.” Scalia made a similarly stark prediction exactly 10 years ago, when he dissented from Kennedy’s opinion striking down state laws against sodomy, and he was prescient: The Lawrence v. Texas ruling formed part of the argument for the Massachusetts Supreme Judicial Court’s ruling.
For now, moderate proponents and moderate opponents of same-sex marriage both embrace the same compromise: that the issue should be left up to the states. Yet this compromise looks increasingly untenable; indeed, a separate Supreme Court ruling on technical grounds Wednesday let stand a lower court decision overturning a same-sex marriage ban enacted by California voters. And Kennedy’s ruling provides a strong legal basis for future court challenges to similar bans in other states.
To critics such as Scalia, this process looks like a “judicial distortion,” an abuse of the courts to seek rights that, until recently, legislatures and referendums refused to grant. But in the end, cases like Edith Windsor’s are simply a matter of aggrieved citizens demanding fair and equal treatment — and justices having the strength and courage to give it to them.