Today the Supreme Court wrongly decided both marriage cases, but the decisions were not as bad as they might have been. The Court declined to declare same-sex marriage a fundamental right and left the future of marriage policy for individual states to decide.
Justice Kennedy wrote for a 5-4 majority in U.S. v. Windsor that the federal Defense of Marriage Act is unconstitutional on grounds that it violates the equal protection clause of the fourteenth amendment. The practical effect of the decision is that same-sex marriage will be recognized in all instances of federal law dealing with marriage. Same-sex couples in states that have enacted same-sex marriage laws will now be granted the same federal benefits and regulations as married couples. The decision in no way undermines marriage laws in the thirty-eight states that have defined marriage as one man and one woman.
Kennedy’s opinion features strong language in support of state sovereignty in determining marriage policy. However, Kennedy’s federalist position is dubious in light of the decision being grounded in an Equal Protection argument. State laws may not violate Constitutional guarantees. We are left to ponder whether, in a future case, Kennedy will be swayed more by his Equal Protection proclivities than his federalist convictions.
In Hollingsworth v. Perry Chief Justice Roberts wrote for the majority in determining that citizens of California lacked standing to sue on behalf of Proposition 8, the initiative defining marriage as one man and one woman in California law. The Ninth Circuit decision was tossed, leaving the original District Court decision. That decision applies to just the two couples named in the suit (same-sex advocates declined to file a class-action suit) leaving the future of marriage policy in California in question. What is clear is that the decision has no bearing on marriage laws in any other state.
These decisions leave the future of marriage and family in America up to its citizens. Though elected officials will sometimes fail in the responsibility to defend the law, and judges will overstep their authority, nothing bars those who understand the meaning of marriage and its importance from doing the hard work of rebuilding a culture of marriage and family. The law is an important element of this mission. After today, nothing changes our ability to work for truth and the common good of all.
