Great expectations

The results of the marriage cases conformed to widespread expectations.  Perry was resolved on procedural grounds; the Court held that the intervenors who defended Prop 8 lacked standing.   DOMA was held unconstitutional in a five-to-four split, with majority opinion by Justice Anthony Kennedy.

Neither case is traditional marriage defenders’ worst nightmare — a Roe-scope tidal wave, sweeping away the laws of those 39 states which still restrict marriage to man and woman.  Neither case is the happiest dream of same-sex marriage proponents – the same.

Perry is no blockbuster for obvious reasons.   But notwithstanding the considerable time we have had to ponder the possibility, no one (myself included) can say with great confidence what its practical effect will be.  The Supreme Court vacated the Ninth Circuit’s ruling, and directed that court to dismiss the appeal for want of an Article III case or controversy.  This action and its supporting reasons suggest –but do not imply — a similar lack of jurisdiction in the District Court.  In that case, is Prop 8 the law of California, or not?

Besides, what difference will it make if Governor Brown directs the relevant state officials to issue marriage licenses anyway to same-sex couples?   Who would have standing to get an injunction against this firesale?   Which way would a properly constituted lawsuit over Prop 8 go?

Some commentators already say that Windsor will save Prop 8.  It is easy to see why it might: that case several times affirms the “sovereignty” of states to decide about marriage for themselves.  But Windsor also affirms the unconstitutionality of taking away same-sex marriage once it is has been legally afforded (as it was, briefly, in California before Prop 8), because withdrawal can only indicate an illicit “animus” towards same-sex couples.

Windsor of course involved a Congressional take-away.  But on this precise question it is unclear to me whether that fact is decisive.

The practical effect of Windsor is not altogether clear, either.  No doubt the superficial view of that impact is sound as far as it goes: in eleven states and the District of Columbia, all legally married couples are henceforth eligible for federal treatment on the same terms as all other married couples.  But married folks are mobile.  Windsor did not address the portability of federal marital benefits.

Consider the case of two federal employees, both men (or women), who recently wed in Rhode Island.  Windsor means that they will be able to file jointly in 2013 for both state and federal taxes.  What if the Pentagon transfers them to Texas in 2014?   Would they have to file singly on April 15, 2015, as if they were strangers to each other?   What of their various benefit programs, including annuities and other financial arrangements, which depend upon there being a surviving “spouse”?  What if they should experience an auto accident on the way to Texas, where one is killed?  Is there a wrongful death claim for the surviving spouse?

Justice Scalia raised questions of this sort in his dissent.  He chided the majority for not “mention[ing}” them. He was right to do so.

Windsor is no blockbuster insofar as Kennedy wrote for the majority that:  “This opinion and its holding are confined to those lawful marriages” — that is, to those states which have (or which may) freely choose to recognize same-sex marriage.  He affirmed repeatedly the “sovereign” authority of all the states to choose between competing understandings of marriage.

In his dissent Justice Alito named the competitors the “conjugal” and “consent-based” understandings of marriage.  That will do well enough, with the caveat that there is a deeper difference   — actually a chasm   — between the competitors which Alito does not mention and which is the Achilles Heel of the majority opinion.

The “conjugal” understanding is wholly about marriage and what the civil law pertaining thereto can do for it.  The argument here centers upon what marriage truly (pre-politically and apart from the law) is, namely,  a union of two people which is intrinsically related – and thus defined partly by – procreation.  Those who hold the “conjugal” view maintain that the law should not treat same-sex relationships as marriages because they are not really marriages.   Same-sex couples are not (in this way of seeing things) suited to marry as opposite-sex couples are suited.  Indeed, they (the same-sex couples) are not suited to marry at all.

The “consent” understanding is more about persons than it is about marriage.  What I mean is that, as Justice Kennedy wrote in Windsor, legal recognition of same-sex marriages represents a “dignity conferred by the states in the exercise of their sovereign power”.   The main idea here, as Kennedy wrote, is that the state has in its gift something which can enrich (by affirming) the choices of persons, namely, a benefit “for those same-sex couples who wish to define themselves by their commitment to each other”.

One can see here emanations form the Mystery Passage of Planned Parenthood v. Casey, where Justice Kennedy co-authored to the claim that the “heart” of our constitutional liberty is “the right of to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”.

Justice Kennedy in Windsor is thinking of marriage law by the light of the MP.  The law’s pertinent contribution is not to marriage as such but to the self-esteem, the autonomy, the choices – the self-definition and personal identity — of those whose marriage it is.  And Windsor declared itself, finally, to be a case about constitutionally protected liberty.

Windsor might not be a blockbuster.  But is it a time bomb?  The question is whether Windsor’s reasoning defeats its advertised limitation – let’s call it the Disclaimer – that federal marriage benefits must be extended only to same-sex couples married in states that legally sanction it.

Two answers to this question are on offer in Windsor dissents.

Justice Scalia issued a challenge in his dissent which was especially tart, even by his pungent standards: “It takes real cheek for today’s majority to assure us,…that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here…I promise you this: The only thing that will ‘confine” the Court’s holding is its sense of what it can get away with”.   The limitation in the majority opinion’s penultimate sentence (the Disclaimer) is a “bald, unreasoned disclaimer”.

The Chief Justice recognized that there are potentially troubling implications of the majority’s rationale.  But one should, he nevertheless said, take those Justices at their word, credit the advertised limitation, and do what one can to hold the Court to it.

My judgment is that one need not choose between these alternatives, for there is one more which slides between the two.  One can credit the majority’s bona fides, as does Roberts..  One can also credit Scalia’s ominous warnings about where the Court is likely to be taking us, notwithstanding the Disclaimer.  One can do both by maintaining – as I do — that the majority opinion is simply incoherent.   To put that differently:  Scalia is probably right that the reasoning of the Windsor opinion undermines the Disclaimer.  He is probably wrong that the majority knows it.  At least he is probably wrong in suggesting that Kennedy knows it.

If there is one thing we have learned from Justice Kennedy’s interventions on this issue – here call to mind his opinions for the Court in Romer and in Lawrence – it is that he believes, fervently, that any singling out of homosexuals and lesbians from a class of persons to which they otherwise properly belong is to demean and to stigmatize them – and doing that violates the Constitution.  Once New York assimilated same-sex couples to legal marriage, the predicate for such a violation was in place.  Then homosexuals and lesbians were undifferentiated, anonymous members of a legally defined class of persons (“married” all), whom Congress then selected precisely on the grounds of their sexual orientation for adverse treatment.

The predicate is absent in Indiana and Texas and in the other 37 states which do not recognize same-sex marriage.  In those jurisdictions, there is no status quo ante of same-sex couples as members of a defined class of persons.  Congress is in no way responsible for denying them anything, much less for unconstitutionally demeaning them.  Selection of homosexuals and lesbians for harder treatment is not only absent.  It is not an available choice.

I believe that there is no other way to make sense of the Windsor opinion.  The question remains: is the states’ freedom to choose “conjugal” marriage safe from the reasoning of Windsor?

The answer would probably be ‘yes” if in fact Justice Kennedy knowingly and fully affirmed states’ right to choose between “competing understandings of marriage”.   The answer would be likely be ‘yes” if his thinking was not moored where I located it earlier – in the Mystery Passage and in personal identity.

Kennedy obviously views marriage law as the bearer of the community’s approval of individuals’ choices and couples’ commitments.  But homosexuals and lesbians stand shoulder to shoulder with heterosexuals in this class of persons-in-relationships.  In the real world same-sex couples can do all that Kennedy says other couples do to merit the state’s gift of dignity: they care for each other,  they have sex, they choose to identify themselves with, and to define themselves by, their commitment.

And yet, the state of Indiana or Texas (or another state) singles them out, and does not bestow upon them a gift which only the state has to give, and which the same-sex couple equally desires, and could equally enjoy.