The Majority of Justices Will Back Up Same Sex Marriage Nationwide

Two of the court’s gay-marriage opponents -- Antonin Scalia and Clarence Thomas -- nonetheless agree with some constitutional law scholars who say a majority of the justices suggested they’re prepared to back same-sex nuptials nationwide when the right case comes before them.

The U.S. Supreme Court shifted the legal and political debate over same-sex marriage to the states, stopping short of directly deciding whether gay Americans have a constitutional right to matrimony.

Justice Anthony Kennedy’s majority opinion in a 5-4 decision on the federal Defense of Marriage Act said the statute violated constitutional guarantees of equal protection under the law. The opinion is “chock full of language that, if taken seriously, would surely invalidate state bans” on gay marriage, according to Michael Dorf, a Cornell University law professor who was a clerk for Kennedy at the Supreme Court.

The federal law said only heterosexual unions qualified for federal benefits available to married couples. In a separate case decided by a different 5-4 lineup, the justices ducked a constitutional ruling on state marriage laws, saying backers of California’s Proposition 8, which prohibited same-sex weddings, didn’t have a legal right to appeal a trial judge’s decision voiding the ban.

‘Gay Justice’

Yesterday’s rulings, the high court’s first actions addressing gay marriage, were released 10 years to the day after Kennedy, appointed by Republican President Ronald Reagan, wrote the opinion in Lawrence v. Texas, a landmark case that threw out state laws criminalizing homosexual sodomy.

“If Bill Clinton was ‘the first black president,’ Anthony Kennedy has now firmly secured his place in history as ‘the first gay justice,’” Dorf wrote in a blog.

In striking down restrictions in the Defense of Marriage Act, known as DOMA, Kennedy’s majority opinion was joined by the court’s four Democratic appointees, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Kennedy also was among the minority that was willing to consider the constitutionality of California’s Proposition 8, rather than deciding that case on procedural grounds.

“He was spoiling for a fight, or so it appears,” New York University law professor Richard Epstein said in an e-mail. From what Kennedy said about equal protection in the DOMA case “it is doubtful that he could resist an equal protection challenge to state statutes,” Epstein said.

Finding Ammunition

At the same time, Kennedy’s DOMA opinion also stressed the rationale that, by enforcing a federal rule that disadvantaged gay couples who were legally married in places that allow same-sex unions, Congress intruded on the traditional right of state governments to regulate marriage.

“Both sides can find ammunition” in Kennedy’s opinion, Michael Klarman, a constitutional law professor at Harvard University, said in an e-mail. “On the one hand, the decision is full of federalism language. On the other hand, if denying marriage to gay couples at the federal level disparages their dignity and equality, it would certainly seem to do likewise at the state level.”

Around the U.S., activists on both sides of the gay marriage debate looked to find reasons for optimism in the court’s decisions.

The Supreme Court’s refusal to rule on the constitutionality of California’s ban “is a huge momentum shift back to those who believe marriage should be between one man and one woman,” said Phil Burress, chairman of Citizens for Community Values in Cincinnati. Burress’s group led an effort to pass a 2004 measure banning same-sex marriage in Ohio.

Marriage Definition

Ian James, co-founder of FreedomOhio, which is seeking to reverse the ban, said in a statement that “we are elated” by the court’s rulings “and our resolve has been doubled.”

The Oregon Family Council, which helped pass a state constitutional amendment prohibiting same-sex matrimony, said in a statement that “the definition of marriage enshrined by the citizens of Oregon” remains intact.

Oregon’s Democratic Governor John Kitzhaber said the court’s action “underscores the urgency of extending the freedom to marry to all our citizens.” Gay-marriage supporters are collecting signatures to seek a vote on repealing the state’s ban.

‘Galvanizing Moments’

The Supreme Court’s procedural ruling throwing out attempts to reinstate Proposition 8 will add California to a list of 12 states and the District of Columbia where gay marriage is legal.

There are efforts under way in Illinois, New Jersey and Hawaii to enact same-sex marriage legislation, and ballot measures are being pursued in Nevada, Oregon and Ohio, said Fred Sainz, a spokesman for the Human Rights Campaign in Washington.

“There will be other galvanizing moments along the way until we have marriage in all 50 states,” Sainz said in a telephone interview.

Chief Justice John Roberts, in a dissenting opinion in the DOMA case, emphasized the court majority’s emphasis on the right of states to set their own marriage laws.

“The court does not have before it, and the logic of its opinion does not decide” whether states “may continue to utilize the traditional definition of marriage,” Roberts wrote. “It is undeniable that its judgment is based on federalism.”

Scalia, in a dissent joined by Thomas, disagreed, saying the five-justice majority “is eager -- hungry -- to tell everyone its view of the legal question at the heart of this case.”

Same Conclusion

“The view that this court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion,” Scalia wrote. “How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”

Dorf, the law professor at Cornell, in Ithaca, New York, said the court left a “real mystery” when a five-person lineup comprising justices on both sides of the broader question -- Roberts, Scalia, Ginsburg, Breyer and Kagan -- joined to reject the Proposition 8 appeal on procedural grounds and avoid a constitutional judgment on the state law.

At least some of the justices may have decided to take one step at a time in resolving constitutional questions about gay marriage, Dorf said.

Ginsburg last month said in a speech at the University of Chicago that, while she supports a woman’s right to choose an abortion, the Supreme Court may have sparked continuing disputes with a sweeping decision in Roe v. Wade that established abortion as a constitutional right in one large legal step.

To contact the reporters on this story: Bob Drummond in Washington atbdrummond@bloomberg.net; Mark Niquette in Columbus at mniquette@bloomberg.net

The cases are Hollingsworth v. Perry, 12-144, and United States v. Windsor, 12-307.