Court Avoids the Landmark Marriage Equality Decision

For supporters of marriage equality, there’s plenty to be happy about in the two Supreme Court decisions announced today. The 5-4 decision in U.S. v. Windsor strikes down the Defense of Marriage Act, and requires federal recognition of same-sex marriages formed in states allowing them. Another 5-4 decision in Hollingsworth v. Perry kills off California’s Proposition 8, bringing marriage equality to another–the largest–state.

But in both cases the Court managed to limit the precedential value of the decisions. Kennedy’s opinion in Windsor does not create any constitutional right to marriage, so the slow slog through the states to establish marriage equality is still required. And the majority (represented by the Chief Justice) in Hollingsworth based its opinion on standing issues alone, ruling that it will not interfere with California’s decision against defending Prop 8 in federal court.

I haven’t read the opinions in full, obviously, but there’s apparently language in Kennedy’s opinion in Windsor that seeks to set a new, tougher standard for judicial review of laws discriminating against LGBT folk. That could matter down the road. But all in all, today’s decisions reflect a deliberately narrow path on marriage equality that will, unfortunately, keep the issue in the legislatures and the courts (and on the ballot) for the foreseeable future.

UPDATE: As Josh Barro points out, Scalia’s angry dissent in Windsor predicts the Court majority will soon find an excuse to strike down all state restrictions on same-sex marriage. Let’s hope Scalia is right for once.

Washington Monthly - Donate Today and your gift will be doubled!

Support Nonprofit Journalism

If you enjoyed this article, consider making a donation to help us produce more like it. The Washington Monthly was founded in 1969 to tell the stories of how government really works—and how to make it work better. Fifty years later, the need for incisive analysis and new, progressive policy ideas is clearer than ever. As a nonprofit, we rely on support from readers like you.

Yes, I’ll make a donation

Ed Kilgore

Ed Kilgore is a political columnist for New York and managing editor at the Democratic Strategist website. He was a contributing writer at the Washington Monthly from January 2012 until November 2015, and was the principal contributor to the Political Animal blog.