I spent most of the past two days either in transit or kept busy and away from the internet, which proves to be lousy timing, as I’ve been unable to post about either the SCOTUS’s heartbreaking evisceration of the Voting Rights Act, or about the two marriage equality cases. (A post about the VRA decision is forthcoming).
I thought Kennedy’s DOMA decision was interesting, in that it attempted to square a circle: Yes, same-sex couples have a right to equal treatment, but no, that doesn’t mean states have to recognize same-sex marriage. Kennedy’s solution was mixing in Federalism (but not too much Federalism, since he also didn’t want to invalidate Federal laws in areas outside of marriage).
It also seemed to create a new level of scrutiny for sexual orientation discrimination cases, something a bit higher than rational basis review but certainly not as high as strict scrutiny. What this will all mean in practice for future LGBT-rights cases, we won’t know for years.
It’s also ironic that this victory comes as court decisions are becoming much less crucial to the fight for marriage equality. Increasingly, this is a battle that is going to be fought in ballot measures and legislatures.
Still, it’s clear that today SSM advocates have a lot to celebrate. It was especially appropriate that the decision was released on the tenth anniversary of the Laurence vs Texas decision.
- Excerpts from Justice Kennedy’s opinion in Windsor
- The two gay marriage decisions in plain English : SCOTUSblog
- Minutes After Supreme Court Strikes Down DOMA, Immigration Judge Stops Deportation Of Married Gay Man
- Two Cheers for the Supreme Court on LGBT Rights
- The DOMA Case Shows That Nobody Cares About Federalism
- What the DOMA Ruling Means for LGBT Families of Color – COLORLINES
- Federalism marries liberty in the DOMA decision : SCOTUSblog
- The Five [Most Ridiculous] Reactions To The Marriage Equality Rulings
- Now That DOMA Is Dead, What Happens To Civil Unions? | ThinkProgress
- Balkinization: Why Justice Kennedy’s DOMA opinion Has the Unique Legal Structure It Has
- Equality: Now you see it, now you don’t
- Balkinization: A brief comment on Justice Kennedy’s opinion in Windsor