CRF Blog

Landmark Decisions on Same-Sex Marriage

by Damon Huss

A photo of the current U.S. Supreme Court, taken in 2010. Front row (L to R): Justice Clarence Thomas, Justice Antonin Scalia, Chief Justice John Roberts, Justice Anthony Kennedy, Justice Ruth Bader Ginsburg. Back row (L to R): Justice Sonia Sotomayor, Justice Stephen Breyer, Justice Samuel Alito, Justice Elena Kagan. (Wikimedia Commons.)

This week appears to be the week for the U.S. Supreme Court’s most anticipated decisions of this term. Monday saw the affirmative action decision in Fisher v. University of Texas. Yesterday saw the Voting Rights Act decision in Shelby County v. Holder. Today has seen a pair of decisions on same-sex marriage: United States v. Windsor (holding that the Defense of Marriage Act, or DOMA, is unconstitutional) and Hollingsworth v. Perry (holding that the private backers of California’s Proposition 8 lacked standing to appeal the federal district court’s order enjoining public officials from enforcing Proposition 8’s ban on same-sex marriage). The full text of today’s opinions are accessible at SCOTUSBlog.

First, United States v. Windsor. Writing for a 5-4 majority, Justice Anthony Kennedy stated “DOMA…violates basic due process and equal protection principles applicable to the Federal Government. ” Furthermore, DOMA is a rejection of long-standing history and tradition that the definition of marriage is a matter of state, and not federal, authority:

The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.

Justice Kennedy was joined by Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. Justices Samuel Alito, Antonin Scalia, Clarence Thomas, and Chief Justice John Roberts dissented. Justice Scalia, Justice Alito, and the chief justice each wrote separate dissenting opinions.

Second, Hollingsworth v. Perry. Writing for a very different 5-4 majority in this case, Chief Justice Roberts stated that the same-sex couples who challenged Proposition 8 (the “respondents” referred to below) had standing under Article III of the U.S. Constitution to file a lawsuit against enforcement of the proposition.

After the District Court declared Proposition 8 unconstitutional and enjoined the state officials named as defendants from enforcing it, however, the inquiry under Article III changed. Respondents no longer had any injury to redress—they had won—and the state officials chose not to appeal.
The only individuals who sought to appeal that order were petitioners…. Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law.
We have repeatedly held that such a “generalized grievance,” no matter how sincere, is insufficient to confer standing….
The chief justice was joined by Justices Breyer, Ginsburg, Kagan, and Scalia. Justice Kennedy filed a dissent, in which he was joined by Justices Alito, Sotomayor, and Thomas.