Yesterday the Supreme Court issued its decisions in two cases connected with same-sex marriage, one involving a challenge to the Defense of Marriage Act (the Clinton administration's law that defined marriage, for all federal purposes, as between one man and one woman), and the other involving California's Proposition 8, a voter-approved initiative that defined marriage in California as between one man and one woman. The results of both cases will go down as landmarks, but the opinions themselves suggest that the Justices would benefit from some graduate courses in constitutional law and legal writing.
The first case, United States v. Windsor (opinion here, in PDF), is a tax case. Edith Windsor and Thea Spyer, both women and residents of New York, were married in Ontario, Canada in 2007, where same-sex marriage was legal. Ms. Spyer died in 2009 and left her entire estate to Ms. Windsor. Legacies to spouses are exempt from federal estate tax. Ms. Windsor paid $363,053 of estate tax and then sued for a refund, asserting that as Ms. Spyer's surviving spouse, the gift to her was exempt from the federal estate tax. The IRS asserted that under Section 3 of the Defense of Marriage Act, Ms. Windsor had not been married to Ms. Spyer within the meaning of the estate tax laws, even if New York considered them to have been married. A trial court held Section 3 unconstitutional and ordered a refund. The United States appealed, sort of, and the Second Circuit Court of Appeals upheld the District Court. The United States appealed that decision to the Supreme Court, sort of (I say "sort of" because in its appeal the United States asked the Supreme Court not to reverse the Second Circuit, but to affirm the decision and hold that Section 3 of DOMA was unconstitutional.)
In his opinion for the Windsor majority, Justice Kennedy gives a good analysis of whether the Court can hear the case at all: is there a real case or controversy if the United States and Ms. Windsor are advocating the same position? When he gets to the merits of the case, he wanders afield from the legal principles, and loses track of time. For instance, he describes New York's marriage law as follows:
By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples whowished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages.
Justice Kennedy then continues:
DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. * * * The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.
Justice Kennedy recognized earlier in his opinion, but forgot it here, that Congress passed DOMA before New York or any other state permitted same-sex marriage. That is, using his reasoning, DOMA sought to injure a class that didn't yet exist.
I predict that legal scholars will mostly celebrate the result of the Windsor case even as they tactfully gloss over the argument the Court used to get to that result. What saves Justice Kennedy's opinion from being considered bad (as a piece of legal writing) is that Justice Scalia's dissent is even worse. I'll have more to say about that in another post.