From Romer v. Evans to United States v. Windsor: law as a vehicle for moral disapproval in Amendment 2 and the Defense of Marriage Act.
Many amici supporting Windsor offered arguments about why heightened scrutiny was the appropriate standard of judicial review by which to assess Section 3. At the same time, amici drew on Romer and Lawrence to stress that the Court could strike down DOMA even without making such a move. Thus, in their brief, Gay & Lesbian Advocates & Defenders (GLAAD) and Lambda Legal Defense and Education Fund stated: "The focus on heightened scrutiny in the parties' filings, ... should not leave the Court with the impression that heightened scrutiny would be required to find DOMA unconstitutional. To the contrary, this Court's equal protection jurisprudence requires the same result even absent heightened review." (685) The brief argues that DOMA fails under the heightened rational basis review set forth in Romer. As GLAAD and Lambda IdEF summarize the Court's jurisprudence:
[P]articular attention is warranted under equal protection review, including when: (1) the group disadvantaged by a measure is traditionally disliked or misunderstood, (2) important personal or liberty interests are at stake, and (3) the disadvantageous classification arises not in the usual course of governing but as a one-time departure from past practice. Under these circumstances, the usual presumption of constitutionality-that classifications are being drawn in good faith, for genuine purposes, and not arbitrarily or to penalize a disfavored group--is weakened. (686)
DOMA "raises concerns under all these criteria," and, thus, "presents the paradigmatic case for particularly demanding review under this Court's 'conventional and venerable' rational basis test." (687) Accordingly, "a string of recent lower court decisions," including the First Circuit's DOMA opinion, "have each heId DOMA unconstitutional even under rational basis review." (688)
The GLAAD/LAMBDA IdEF brief also turns to Justice O'Connor's concurrence in Lawrence to explain how the Moreno, Cleburne, and Romer trio supports heightened rational basis review of Section 3: "[E]ven absent application of heightened scrutiny, the normal presumption of constitutionality is less conclusive when a measure disfavors a historically disadvantaged or unpopular group. The targeting of such groups raises questions about whether bare antipathy formed the basis for the legislation ... In such cases, the Court has applied 'a more searching form of rational basis review." (689) The brief drew on Romer to assert that "'animus' toward gay people is not a legitimate basis for law," but pointed out, drawing on a concurrence by Justice Kennedy, that the "category of prohibited rationales extends well beyond overt animosity, bigotry, or hatred" to include "a more subtle yet harmful 'insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves." (690) The brief invoked both Lawrence and Romer for the point that "it is obvious that the persons disadvantaged by DOMA have historically been mistreated and condemned," and "[f]or that reason alone, laws that selectively disadvantage gay men and lesbians, as DOMA does, merit closer attention." (691) In a passage that has some parallel in Justice Kennedy's eventual majority opinion in Windsor, amici emphasized the ways in which DOMA places burdens on the marriages of same-sex couples in daily life, and then explicitly framed the injury in Romer's terms:
[I]rrespective of whether the burdens imposed by DOMA on the marriages of same-sex couples are viewed as encroaching on fundamental rights to family relationships, the family and liberty interests at stake are certainly substantial. The burdens of having one's lawful marriage negated in the many important areas of life touched by the federal government (which range from treatment under the tax laws to legal protections in federal court, private pension plans, rights under the Family Medical Leave Act, and federal benefits under numerous programs, among others) pervasively disadvantage those relationships and thereby implicate "[c]hoices about marriage, family life, and the upbringing of children.".... [E]ven indirect burdens on such interests merit close attention.... Moreover, DOMA's wholesale refusal to afford marriages of same-sex couples any legal recognition withdraws a panoply of protections of marriage that cumulatively "constitute ordinary civic life in a free society" taken for granted by other married couples. (692)
In this passage, the brief signals a way the Court could strike down DOMA without engaging in fundamental rights analysis and deciding whether homosexuals have the same fundamental right to marry as heterosexuals.
In another significant amicus brief, New York, along with other states that permitted or recognized same-sex marriage and states that offered legal recognition to same-sex couples' relationships through civil union or domestic partnerships laws, argued that, under Romer, Section 3 of DOMA was "so sweeping" that if fails "any level of scrutiny," "even rational basis review." (693) The New York Brief honed in on language in Romer that subsequently featured in Justice Kennedy's Windsor opinion as providing the relevant legal framework: "DOMA's discriminatory treatment of state marriage laws and same-sex couples married under state law requires more than minimal justification. This Court has recognized that laws that impose novel disabilities and '[d]iscriminations of an unusual character' warrant more searching scrutiny even under a rational basis standard." (694) Amici states, appropriately, stressed that this "unusual" discrimination implicated federalism: "Section 3 of DOMA imposes just such a novel and unusual rule of non-recognition on marriages that are valid under state law, and thereby constitutes a broad, unprecedented intrusion into state regulation of domestic relations." (695)
The New York Brief further fit Section 3 into the Romer template by stressing its sweep, a feature that must lead it to fail the "skeptical examination warranted by its legislative novelty and its substantial federalism costs." Amici argued, in the alternative, that Section 3 would fail "even if more searching scrutiny" was not used because it "is so unmoored from any concrete federal end that it fails even rational basis review. Like [Amendment 2], DOMA's staggering breadth 'confounds [the] normal process of judicial review' because it lacks even a rudimentary fit between 'the classification adopted and the object to be attained." (696) Contending that "DOMA's refusal to recognize same-sex marriages does nothing to conserve federal resources, while inflicting stigmatic harm on married same-sex couples who are excluded from statutory definitions of marriage," amici states appeal to Romer's conclusion that a law lacks a legitimate interest when it is "'inexplicable by anything but animus toward the class it affects." (697) Amici invoked Romer's concluding passage: "At bottom, section 3 accomplishes only one coherent objective: making married same-sex couples 'unequal to everyone else,' ... an aim that violates equal protection." (698)
The amicus brief filed by 172 Members of the U.S. House of Representatives and 40 U.S. Senators highlighted the contrast between DOMA and ordinary "Acts of Congress" to argue, under Romer, that DOMA "must fail even if it does not trigger heightened review." (699) By contrast to amici in support of BLAG who stressed the irrelevance of legislative motive, these legislators highlighted the central role that "moral disapproval" played in enacting DOMA--as evidenced in the House Report--and cited that disapproval as evidence that DOMA was based on impermissible "animus." (700) This excerpt from the brief illustrates how thoroughly these members of Congress enlisted Romer, even to the point of Justice Kennedy's opening quotation from Justice Harlan:
Justice Harlan famously said in his dissent in Plessy v. Ferguson that "the Constitution 'neither knows nor tolerates classes among citizens.'".... That unassailable principle, which lies at the very heart of this Nation's character, dictates the outcome here: DOMA is constitutionally impermissible "class legislation" [Romer (quoting Justice Harlan)], plain and simple.
Virtually every feature of DOMA distinguishes it from routine "statutory definitions and other line-drawing exercises." ... It was enacted without any genuine effort to discern a connection to a legitimate federal interest. It singles out married same-sex couples by one trait alone and denies them protection across the board. And a purpose for its enactment, clearly stated in the House Report and during floor debates, was moral disapproval of the minority group that it burdens. None of the arguments advanced in DOMA's defense comes remotely close to justifying it. Thus, even if the Court does not apply heightened review, DOMA must be struck down. "It is not within our constitutional tradition to enact laws of this sort." [Romer] (701)
Amici also enlisted Lawrence to frame the constitutional problems with Section 3. First, referencing moral disapproval of homosexuality and concern over defending marriage, the brief filed by members of Congress stated:
Those views no doubt reflect "profound and deep convictions," reflecting the "ethical and moral principles" of those who hold them.... But this Court has made clear that such "considerations do not answer the question before us." ... No matter how sincerely held, such beliefs are not a constitutionally valid basis for enacting "a classification of persons undertaken for its own sake" and "den[ying] them protection across the board." (702)
Amici similarly drew on Lawrence in combination with Romer to argue for the constitutional insufficiency of appeals to tradition or to "'the fact that the governing majority in a State has traditionally viewed a practice as immoral...."' (703) They found applicable Justice O'Connor's statement, in her concurrence in Lawrence (discussed above) that, under the Equal Protection clause, "the Court had 'never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons." (704) Moreover, amici quoted the Lawerence majority's adaptation of the famous language from the joint opinion (co-authored by Justices Kennedy, O'Connor, and Souter) in Planned Parenthood v. Casey: the fact that "'for centuries there have been powerful voices to condemn homosexual conduct as immoral.., shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family.., doles] not answer the question before us, however ... [which is] whether the majority may use the power of the State to enforce these views on the whole society." (705) Thus, the American Humanist Association also quoted the Court's declaration, in Lawrence (echoing Casey), that: "[Our] obligation is to define the liberty of all, not to mandate our own moral code." (706) The Anti-Defamation League similarly argued:
Religion plays an important role in the lives of many Americans, and many lawmakers are undoubtedly guided in their legislative decision-making by personal religious and moral beliefs. But under a line of cases including this Court's decision in Lawrence v. Texas ... a law must be rationally related to a legitimate government interest beyond the desire to disadvantage a group on the basis of moral disapproval. DOMA lacks such other interest. (707)
Amici also classified Lawrence, with its limits on moral disapproval as a basis for law, as "consistent with a series of cases in which the Court invalidated laws reflecting a 'bare desire to harm a politically unpopular group." (708) Taking language from the Cleburne, Moreno, and Romer trilogy, for example, the Anti-Defamation League asserted: "In these cases, the Court properly stripped away the rationales proffered in support of such laws to uncover the fact that 'animus,' 'negative attitudes,' 'unease,' 'fear,' 'bias,' or 'unpopular[ity]' actually motivated the legislative action at issue." (709) In doing so, amici contended that the Court's Due Process jurisprudence (as in Lawrence), which supports the propositions that "moral condemnation of an identifiable group is never a legitimate government interest," and that "religious and moral beliefs.., standing alone and directed toward the disparagement of a single identifiable group, cannot survive even the lowest level of constitutional review," should apply to cases brought under the Fifth Amendment Equal Protection guarantee, like Windsor's challenge to DOMA. (710)
Some amici directly responded to those amici supporting BLAG who invoked Justice Scalia's warning, in his Lawrence dissent, that "if morality is an insufficient governmental interest, a number of state laws would be 'called into question,'" such as "'laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity'". (711) Thus, the AHA countered:
Even putting aside the repulsive calumny inherent in lumping together marriage equality with bestiality and incest, a careful review of each instance in which this Court has considered such laws reveals that morality has never stood alone as justification for them. In every instance, the decision relied on the governmental interest in preventing other concrete harms of the prohibited conduct and not on a bare assertion of immorality. (712)
2. Arguments about Promoting Morality and Marriage and the Presence or Absence of Animus
In this section I consider arguments filed by amici on both sides concerning whether protecting marriage as an institution provided a constitutional justification for DOMA. Some of the arguments for DOMA appealed to promoting traditional morality; others appealed to promoting responsible procreation and optimal childrearing. Both strands of argument insisted animus did not underlie DOMA. Amici filing in support of BLAG, for example, framed the issue as one of robust public debate over two competing models of marriage and urged the Court to refrain from interfering in that debate by taking sides (a theme sounded in Justice Alito's Windsor dissent, as I shall discuss below). Amici filing in support of Windsor pointed out the problems in the appeals to procreation and optimal parenting, while also insisting that preserving tradition --including traditional marriage--was insufficient to justify Section 3. Inevitably, amici read and enlisted Lawrence different ways, sometimes in combination with Romer.
(a) Arguments in favor of DOMA and BLAG
Several amici who filed briefs in support of BLAG framed the litigation over Section 3 as improperly shifting from the democratic to the judicial arena a societal debate over what marriage is and should be. They further argued that the Constitution does not require one vision or the other, and that is all the more reason "the people," not the judiciary should decide. If, however, the judiciary is to reach the merits, amici insisted, only deferential basis should apply--a test Section 3 readily met. This is, I argue below, the road not taken by the Windsor majority, but it is the road taken by Justice Alito's dissent and, in blunter terms, by Justice Scalia's.
Robert George, Sherif Girgis, and Ryan Anderson framed the debate over the definition of marriage as between the "conjugal view" of marriage as a "comprehensive union" of spouses "begun by commitment and sealed by sexual intercourse.... by which new life is made," and a "revisionist view," in which "marriage is essentially an emotional union, accompanied by any consensual activity" and seen "as valuable while the emotion lasts." (713) They contended that while the conjugal view "has long informed the law," the revisionist view "has informed certain marriage policy changes of the last several decades." (714) For these amici, the stakes over striking down or upholding DOMA, which affirms the conjugal view, are serious. They contended that, while prior legal developments in the direction of the revisionist view (such as liberalizing divorce law) have already undermined marriage as an institution, "[r]edefining civil marriage will obscure the true nature of marriage as a conjugal union," uniquely linked to procreation and childrearing, and, thus, undermine--rather than strengthen--marriage's "stabilizing norms," to the detriment of "spouses, children, and others." (715) As I discuss below, Justice Alito draws on the arguments made by George, Girgis, and Anderson. (716)
The amicus brief filed by the National Association of Evangelicals (NAE) and several other prominent religious denominations similarly framed the issue as a high-stakes debate over models of marriage. (717) They explained their interest in the litigation: "Faith communities have the deepest interest in the legal definition of marriage and in the stability and vitality of that time-honored institution." (718) The NAE brief elaborated two contrasting conceptions of marriage:
The age-old, traditional understanding conceives of marriage as a union between a man and a woman that is inherently oriented toward procreation and childrearing and in which society has a profound stake. A more recent conception views marriage as primarily a vehicle for affirming and supporting intimate adult relationship choices, a vision that is not inherently oriented toward uniting the sexes for the bearing and rearing of children. (719)
The brief further asserted that the newer conception is a "radical break from all human history," because "gender itself is irrelevant. What matters most is public endorsement of the adults' chosen relationship, obtaining official status for that relationship, and the official approval that comes with such endorsement and status." (720)
The NAE brief next argued that "[w]hether the Nation retains the traditional definition of marriage or redefines marriage to include same-sex couples is a social issue with potentially wide-ranging consequences," and that "such policy questions cannot be definitively answered by science, professional opinion, or legal reasoning alone." (721) Although NAE has been "persuaded by scholarly opinion supporting traditional marriage," it acknowledged disagreement among "social science scholars" over things like "the effects of gay parenting on children." (722) The outcome of that disagreement, however, is irrelevant to what the Court should do:
Whatever the ultimate conclusions may be, "[n]othing in the Constitution requires [government[ to accept as truth the most advanced and sophisticated [scientific[ opinion.".... In part, because such opinions are inherently tentative, especially in the social sciences where conclusions are often laden with values-based assumptions and there is no values-neutral position from which to weigh and judge what is best. But also because in a democratic society the People govern--not philosophers, scientists, or academics. Hence, whether the Nation should redefine marriage is principally about the People's values, morals, and policy judgments. (723)
By "the People," NAE must have been referring to the national electorate, one presumes, since New York's "people" had made a decision to allow same-sex couples to marry, as a result of a deliberative process. (724)
NAE further argued that Congress may act to protect a "valued moral norm" and that "many congressional enactments reflect unmistakable moral and value choices." (725) NAE also warned that "declaring DOMA void because it adheres to traditional moral and religious beliefs would fly in the face of this Court's teaching that the Constitution 'does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities." (726) NAE argued for a form of neutrality toward religion: "DOMA is entitled to be judged on its merits according to settled rules of law--not on a more demanding standard born of suspicion toward religion, religious believers, or their values." (727)
Amici often anchored their marriage-based arguments for DOMA to Justice O'Connor's statement, in Lawrence, that "'other reasons exist to promote the institution of marriage beyond mere moral disapproval of the law." (728) These reasons, amici asserted, were not unconstitutional animus. Several amici linked DOMA to legitimate governmental purposes associated with encouraging responsible procreation and optimal parenting - arguments BLAG stressed as well. For example, in their brief in support of BLAG, Indiana and sixteen other states asserted that the fundamental Equal Protection question was "whether there is anything wrong with adhering to the traditional definition of marriage," and answered:
As long as some legitimate governmental purpose exists for conferring exclusive benefits on qualified opposite-sex couples, DOMA is valid in all applications. Such a legitimate rationale is crystal-clear: opposite-sex couples are the only procreative relationships that exist, which means that such couples are the only ones the government has a need to encourage.... [I]f this innately biological rationale is dismissed, the government has no coherent argument for denying marriage status to any number of persons who desire a committed relationship with each other. (729)
The states disavowed animus: "the traditional definition of marriage has always been about the need to encourage potentially procreative couples to stay together for the sake of the children their sexual union may produce, not about animus toward homosexuals." (730)
The Manhattan Declaration brief, after invoking Justice O'Connor's Lawrence concurrence, asserted that their position is not rooted in animus, but on "sincere belief and sound public policy considerations," since heterosexual marriage "encourages and supports responsible procreation and childrearing," and "redounds to the health and well-being of societies in general." (731) The Coalition for the Protection of Marriage similarly distinguished "animus" from "sound public policy":
The overwhelming international consensus--including among liberal western democracies with established traditions of concern for the rights of gays and lesbians--is that reserving the formal institution of 'marriage' to opposite-sex couples while supporting same-sex couples through other rights and legal mechanisms is sound public policy. That consensus is based not on irrationality, ignorance, or animus toward gays and lesbians but on considered judgments about the unique nature and needs of same-sex couples and children. (732)
The Liberty Counsel linked Section 3 to "important governmental objectives that reinforce the link between marriage and procreation," (733) contending:
Congress could have rationally concluded that marriage is society's way of recognizing that the sexual union of one man and one woman is unique, and that government needs to support this union for the benefit of society and its children, or that marriage laws are not primarily about adult needs for approbation and support, but about the well-being of children and society. This conclusion is not only rational, but it [is] based on centuries of historical traditions and customs, sociological studies, and common sense. (734)
Amici also asserted that the longstanding tradition of heterosexual marriage undermined any inference that "marriage was invented thousands of years ago as a device to discriminate against homosexuals." (735) This argument went both to animus and to the lack of any basis for applying heightened scrutiny. Thus, amici states argued that, while DOMA and traditional state definitions of marriage have an impact on homosexuals, they do not "target" them, and thus, the states concluded, heightened scrutiny was not appropriate since "a decision to adhere to that longstanding traditional definition of marriage [does not] betray a purpose to discriminate on the basis of sexual orientation." (736) The Manhattan Declaration also disavowed any discriminatory purpose: "defenders of marriage are not interested in discrimination but rather in preserving marriage as the objective reality it has always been--for the good of the societal interests it has always served." (737)
Some amici conceived the different models of marriage at stake as traditional versus "genderless" marriage and warned that society cannot have both institutions at once. For example, the Coalition for the Protection of Marriage contrasted "man-woman marriage" and "genderless marriage" in terms of the former's broader vision of marriage as a vital social institution offering social goods:
A fundamental issue in the contest over the constitutionality of man-woman marriage is: What is marriage? All advocacy for genderless marriage is built upon a narrow view that marriage is no more than love and friendship, security for adults and their children, economic protection, and public affirmation of commitment. ... [P]roponents of man-woman marriage advance a broader view of marriage [that] encompasses the social benefits ('goods') identified with the narrow view but also much more. ... the marriage institution's vital role and social goods (i) centered in children (those now living and for generations to come), including making meaningful the child's bonding right, providing adequate private welfare to the vast majority of children (those conceived through passionate, heterosexual coupling), and perpetuating the optimal childrearing mode; (ii) essential in the statuses and identities of husband and wife; and (iii) necessary for protection of the fundamental rights of natural parenthood and family relations. (738)
The Coalition's brief elaborated on how the "man-woman meaning" is at the "core" of the interrelated meanings that make up marriage as a "vital and fundamental social institution," and how, because marriage is a social institution, it provides men and women with "statuses, identities, perceptions, aspirations, and projects" and guides their conduct in ways that realize social goods, such as a child's "knowing and being raised by her own mother and father." (739) Marriage is the foundation of "the natural family as a buffer between family members and the state," and also "humankind's best means for maximizing private welfare to the vast majority of children (those conceived by passionate, heterosexual coupling); and the irreplaceable foundation of the optimal child-rearing mode." (740)
If society preserves man-woman marriage, even while it "recognizes domestic partnerships," the Coalition argued, the former "continues to provide society with valuable social goods that it cannot get otherwise." (741) By contrast, "society cannot have at the same time two institutions denominated marriage with different core meanings or a single institution denominated marriage with different, conflicting core meanings." (742) If society goes the route of permitting genderless marriage,
T]he reality is that changing the meaning of marriage to that of "any two persons" will transform the institution profoundly, if not immediately then certainly over time as the new meaning is mandated in texts, in schools, and in many other parts of the public square and voluntarily published by the media and other institutions, with society, especially its children, thereby losing the ability to discern the meanings of the old institution. (743)
Indeed, the Coalition predicted further harmful consequences:
A genderless marriage regime is and will be socially hostile and politically adverse to: the child's bonding interest; natural parenthood as the foundation for the construction of parenthood in our society; the concept that relational rights within the natural family are not created, dispensed, and withdrawn at the will of the state; and the personally and socially valuable statuses and identities of husband and wife. (744)
As this passage suggests, the Coalition views "the natural family," of which man-woman marriage is the core, as prepolitical, but vulnerable to tampering by the state if the law uses its power to "mandate[e] a genderless marriage regime," which will "over time" suppress and displace the man-woman meaning. (745)
The brief filed by the Manhattan Declaration similarly warned that Edith Windsor's "cavalier project" of requiring the federal government to accept each state's redefinition of marriage
threatens to transform marriage from an organic institution marked primarily by unitive creation and the promotion of life and generational continuity to a manufactured institution marked primarily by the satisfaction to be provided by adult romance. ... [should] the new marriage regime ... come to fruition, [it] would inevitably opt for the private over the common good, with predictably deleterious consequences for children and society at large. (746)
The brief framed the issue as a threat to "marriage culture:"
Vast human experience confirms that marriage is the original and most important institution for sustaining the health, education, and welfare of all persons in a society. Where marriage is honored, and where there is a flourishing marriage culture, everyone benefits-the spouses themselves, their children, the communities and societies in which they live. Where the marriage culture begins to erode, social pathologies of every sort quickly manifest themselves. (747)
Some amici appealed to religious and Biblical understandings of marriage in support of Section 3's preserving "traditional" marriage and warned of consequences if the civil law of marriage departs sharply from religious conceptions of marriage. Some amici resisted the very idea that civil and religious understandings of marriage could or should be distinct. For example, the Coalition for the Protection of Marriage asserted: "Although interacting with and influenced by other institutions such as law, property, and religion, marriage in our society is a distinct, unitary social institution and does not have two separate, independent existences, one 'civil' and one 'religious.'" (748) The Manhattan Declaration brief argued that the concept that societies give legal recognition to marriage to "encourage and support responsible procreation and childrearing" is "remarkably similar to the Christian belief that through marriage man and woman cooperate conjugally in the creative act of God Himself." (749)
Some amici who stressed the relevance of religious conceptions of marriage insisted that Congress could enact DOMA to defend traditional notions of morality, including disapproval of homosexuality. For example, Westboro Baptist Church argued at length that homosexuality (along with adultery, abortion and the like) is such a serious sin that it will motivate God to punish the U.S. by destroying it, similar to the Flood in Noah's time. (750) The Foundation for Moral Law asserted: "From Biblical law and other ancient law, through English and American common law and organic law, to recent times, homosexual conduct has been abhorred and opposed; the idea of a 'marriage' based on such conduct never even entered the legal mind until very recent times." (751) Thus:
Congress's passage of the federal definition of marriage in DOMA had the force of that history behind it and several present-day interests that were asserted when DOMA was enacted in 1996, such as an interest in defending marriage and an interest in defending traditional notions of morality. DOMA easily bears a rational relationship to Congress's support of traditional marriage as it began to come under attack through the courts in 1993. (752)
The Foundation's statement of interest in the case reads like a Bowers-era, pre-Lawrence argument: after declaring that "this nation's laws should reflect the moral basis upon which the nation was founded," including "the ancient roots of the common law," the Founders' views, and "the views of the American people," it reported that those views have always "held that homosexual conduct has always been and continues to be immoral and should not be protected or sanctioned by law." (753) Other amici explicitly referred to Bowers" recognition of the role of religious beliefs in condemning homosexuality in asserting that the DOMA battle involved a clash of rights. After invoking Chief Justice Burger's Bowers concurrence in support of the assertion that "[s]ame-sex intimacy is contrary to centuries of religious teaching. ... [and] would 'cast aside millennia of moral teaching' to convert it to a fundamental right," (754) the Liberty, Life and Law Foundation and North Carolina Values Coalition argued that, even under Lawrence, the privacy rights of homosexuals should not trump the privacy rights of other citizens, since:
even in overruling Bowers, this Court acknowledged that: 'The condemnation [of homosexual conduct] has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives.' (755)
Finally, in contrast, some conservative amici generally committed to bringing biblical principles to bear on public policy made no overt reference to morality and instead emphasized other reasons for DOMA. Thus, a brief filed by the Beverly LeHaye Institute and National Legal Foundation, affiliated with Concerned Women of America, stated its interest in providing "accurate academic and scientific data with sound analysis to inform and substantiate policy positions on contemporary issues from a traditional pro-family, feminine perspective;" its brief appealed to the dissent in Windsor, contending that "Judge Straub "demonstrated just how easy it is to understand how DOMA advances the goals of responsible childrearing." (756) The brief then detailed scientific studies that allegedly demonstrated that children in same-sex parent households are disadvantaged. (757)
(b) Arguments made for Edith Windsor
As discussed above, amici filing in support of Windsor enlisted Romer and Lawrence to argue that expressing moral disapproval and promoting traditional morality were insufficient reasons to survive any form of judicial review, be it heightened scrutiny, the more searching form of rational basis review, or even ordinary rational basis review. Amici frequently referred to the House Report language that DOMA's purpose was "'to reflect and honor a collective moral judgment about human sexuality' that 'entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality,'" and connected this moral approval to impermissible animus, prejudice, and a bare desire to harm. (758) The brief filed by 172 Members of the U.S. House of Representatives and 40 U.S. Senators stressed that under Lawrence, the appeal to traditional views of marriage was not enough:
That same-sex couples were previously excluded from marriage, and therefore from federal responsibilities and rights that hinge on marriage, cannot itself justify their continued exclusion. After all, there is no guarantee that tradition-which often reflects fallible social norms and biases--is itself rational. Thus, "[t]hat the governing majority. ... has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice" (Lawrence, ...) and "[a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis" ... DOMA must rationally serve legitimate federal interests independent of consistency with tradition or historical practice. It doesn't. (759)
The American Humanist Association contended that "DOMA can be justified by no actual governmental interests that can logically be shown to prevent harm or promote welfare," and "[a]ll that is left to its defenders is a moral argument that homosexuals are sinful and therefore not to be permitted to share the institution of marriage with heterosexuals." (760) The Association argued: "This kind of spiteful, self-righteous 'desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.'" (761)
While amici supporting BLAG framed the issue more in terms of the Court not taking sides in a debate over models of marriage, amici for Windsor stressed that the only couples affected by DOMA were those lawfully married under state law and argued that the lack of fit between means and end provided further evidence of the lack of any legitimate purpose. The amicus brief filed by the American Bar Association heavily employed the Romer template in arguing that "[t]he governmental interests advanced in support of Section 3 cannot justify the unprecedented exclusion of one group, legally married gay and lesbian couples, from all of the federal benefits and responsibilities of marriage." (762) The ABA brief characterized Section 3 as "discriminations of an unusual character," as evidenced by the practical consequences for those lawfully married couples whom the provision "singles out" in the areas of health care, retirement planning, immigration, military benefits, taxes, and ethical responsibilities. (763) "By 'deem[ing] a class of [married] persons a stranger to [federal] laws,' ... notwithstanding recognition by a couple's State of their marriage," the ABA argued, "Section 3 denies that class [of] legally married gay and lesbian couples ... equal protection." (764) The ABA dismissed the several "'unique federal interests'" that BLAG asserted for Section 3: that it "'preserves each sovereign's ability to define marriage for itself,'". ... "fills the need for a 'uniform federal definition' of marriage," and "permits States to 'act as laboratories of democracy' while the federal government reserves judgment on same-sex marriage." (765) The ABA countered that such justifications "founder in light of the States' long-standing primacy in defining marriage," referencing other amicus briefs detailing how "the regulation of marriage has always varied from State to State in numerous ways," such as rules concerning minimum age, consanguinity, and recognition of common law marriage. (766) Far from encouraging states to be experimental laboratories, it continued, "Section 3 thwarts the democratic process by preventing States from allowing their gay and lesbian citizens a truly equal share in the benefits and responsibilities of civil marriage." (767) As I discuss below, this type of argument about how DOMA creates a regime of unequal benefits and responsibilities features in Justice Kennedy's majority opinion in Windsor.
Amici also responded to arguments that Section 3 promoted governmental interests in responsible procreation and optimal parenting. Drawing on the First Circuit's DOMA opinion, the ABA, for example, stressed the complete lack of connection between the argument that Section 3 promotes traditional marriage and childrearing and Section 3's actual impact:
As a purely logical matter, excluding gay and lesbian couples from federal benefits cannot create an incentive for heterosexual couples to marry or raise children responsibly. "This is not merely a matter of poor fit of remedy to perceived problem, but a lack of any demonstrated connection between DOMA's treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage." (768)
The American Jewish Committee argued that BLAG's procreation-based justifications for denying same-sex marriage were misguided, since "[m]arriage is about far more than children." (769) While the state has an important interest in protecting children, the AJC continued, denying same-sex marriage neither furthered this interest nor kept same-sex couples from having and raising children. (770) Further, the brief made a significant distinction between religious and civil marriage, observing that, while "[s]ex and sexual morality are central to religious marriage," these same values are "increasingly peripheral to legal provisions for civil marriage." (771)
In support of their argument that procreation is not "an essential element of marriage," the Family and Child Welfare Law Professors brief enlisted Justice Scalia's query and answer in his Lawrence dissent: "[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples exercising '[t]he liberty protected by the Constitution'? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry." (772) This brief also appealed to the Lawrence majority to refute BLAG's appeal to procreation as a rationale for DOMA: "'it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.'" (773) The brief canvassed state statutes and case law to support the argument that procreation (or intention to procreate) is not a requirement for any marriage, the inability to procreate is not a ground for divorce, and marriage itself offers many social and financial benefits to spouses that have nothing to do with procreation. (774) The brief concluded that "DOMA 'seems inexplicable by anything other than animus towards the class it affects.'" (775)
Some amici challenged contentions by BLAG's amici that social science evidence supported continued adherence to traditional marriage. For example, the American Psychological Association, along with the American Medical Association and the American Academy of Pediatrics, filed an amicus brief, just as it did in the Romer litigation. (776) Parallel to that earlier brief, the APA brief chronicled a history of prejudice toward homosexuals and the scientific community's changed view about homosexuality. Pertinent to the DOMA litigation, it argued that numerous studies demonstrate that heterosexual couples are not inherently better parents than same-sex couples, as BLAG and others suggested; instead, "the vast majority of scientific studies ... has consistently shown" that gay and lesbian parents "are as fit and capable parents" as heterosexual parents. (777) Citing to many studies, the brief countered arguments that homosexuality is a choice and that children of homosexual couples are disadvantaged.
The APA brief argued that DOMA's legislative history indicates that the Act reflected legislators' disapproval of homosexuality and that "the beliefs about lesbians and gay men relied on by Congress in enacting DOMA ... reflect an unreasoned antipathy towards an identifiable minority." (778) It asserted that, by offering greater privileges and protections to married heterosexual couples and their children, DOMA "conveys the federal government's judgment that committed intimate relationships between people of the same sex ... are inferior to heterosexual relationships," thereby "legitimiz[ing] prejudicial attitudes and individual acts against the disfavored group, including ostracism, harassment, discrimination, and violence." (779) The APA and other amici asserted that DOMA stigmatized same-sex couples and their children. (780) For example, the Family Equality Council brought forth statements by children raised by same-sex couples to challenge BLAG's "assertion that marriage must be confined to opposite-sex couples in order to 'promot[e] an optimal social structure for educating, socializing, and preparing [our] future citizens.'" (781) The Council argued that procreation-based justifications for excluding same-sex couples from the definition of marriage "treat the children of same-sex parents as, at best, invisible, and, at worst, non-existent," adding that "the major challenge most same-sex patented families must surmount is ... the societal and governmental disapproval that both Proposition 8 and DOMA represent and perpetuate." (782) Moreover, DOMA and Proposition 8 "exacerbate feelings of hopelessness about the future and perpetual 'different-ness' that many LGBT youth already feel and discourage them from aspiring to full participation in civic life." (783)
3. Arguments about Religious Liberty and a Clash of Rights
(a) Arguments for BLAG
Some of the arguments concerning DOMA's role in protecting morality, discussed above, also implicated arguments about preserving religious liberty. Some amici also warned that as civil laws changed their definitions of marriage, religious persons and groups adhering to traditional definitions would face threats to their religious liberty. New civil marriage laws, in other words, would create a clash of rights. Some arguments about how DOMA avoided that clash parallel arguments made in Romer about how Amendment 2 resolved the potential clash of rights posed by expansive anti-discrimination laws in favor of religious liberty. (784) For example, the Becket Fund for Religious Liberty argued that "because so many major religious groups center their teachings regarding sexual morality around opposite-sex marriage, changing the definition of marriage itself ... triggers a distinct set of religious liberty concerns." (785) For example, "being forced to call a same-sex relationship a 'marriage' creates a conflict of conscience for many religious organizations where 'civil union' or 'domestic partnership' would not." (786) DOMA, therefore, was a rational response to two religious liberty conflicts caused by marriage equality laws:
First, objecting religious institutions and individuals will face an increased risk of lawsuits under federal, state, and local anti-discrimination laws, subjecting religious organizations to substantial civil liability if they choose to continue practicing their religious beliefs. Second, religious institutions and individuals will face a range of penalties from federal, state and local governments, such as denial of access to public facilities, loss of accreditation and licensing, and the targeted withdrawal of government contracts and benefits. (787)
The Becket Fund asserted that "DOMA and Proposition 8 were rational responses to court decisions that gave legal recognition to same-sex marriage without addressing the significant church-state conflicts that would result" from "burdens imposed by ... supposedly neutral, generally applicable laws." (788) This argument seems inapt as applied to Windsor, since New York enacted marriage equality through the legislative process and included religious exemptions.
The Christian Legal Society, joined by Catholic Answers and the Catholic Vote Education Fund warned that classifying homosexuals as a suspect or quasi-suspect class would compromise religious liberties:
This Court is being asked to recognize sexual orientation as a suspect or quasi-suspect class for purposes of federal equal protection jurisprudence. But to do so would, at both a theoretical and a practical level, necessarily diminish the ability of our nation's religious individuals and communities to live according to their faith. ... There is already a broad and intense conflict between the gay rights movement and religious liberty regarding marriage, family, and sexual behavior. If the Court creates a new suspect classification for sexual orientation, it will take sides in that conflict and place millions of religious believers and organizations at a potentially irreversible disadvantage in their efforts to consistently live out their faith. (789)
The brief warned: "[B]y making sexual orientation a new protected class under our Constitution, this Court would hand the government a tremendous tool to constrain traditional churches, synagogues, and mosques to catechism and ceremony, and to force religious believers to restrict the exercise of their faith to those narrow confines." (790) The brief drew a parallel to the impact of antidiscrimination laws on religious organizations: "As this Court observed in [that] context ... the '[f]ear of potential liability might affect the way an organization carried out what it understood to be its religious mission.'" (791)
The CLS brief also disputed the framing of the issue as "the inevitable clash ... between 'identity liberty' (of homosexuals and bisexuals) and 'belief liberty' (of religious people)" because it wrongly assumed "that many religious persons do not define their identities by their faith." (792) The brief further asserted that, "[t]oo often gay rights advocates equate traditional religious beliefs regarding sexual orientation and sexual conduct to racism, insisting that these traditional religious beliefs should not be tolerated outside a tightly restricted personal sphere," while "many traditional religious believers approach issues regarding sexual orientation as primarily religious questions about sexual behavior, rather than personal identity." (793) The focus of this line of argument was a concern that if the Court recognized sexual orientation as a "new suspect class," then states and municipalities would be "forced to remove their religious liberty exceptions," leaving religious individuals and communities "very limited legal recourse to protect their ability to fully live out their faiths."s (794)
The Chaplain Alliance for Religious Liberty asserted that repealing DOMA would impair "military religious liberty," since "it is very likely that service members who hold traditional religious beliefs on marriage and family will face, for the first time, military policies and duties that sharply [sic] hostile to their beliefs." (795) For example, "[w]hile there is no question chaplains will continue to serve all service members, if military policy becomes directly antithetical to their beliefs on the fundamental issues of marriage and family, chaplains will find their hands tied as to how they can serve," since, "[o]n a wide variety of issues, including some that are very important to military families, it seems likely that military policy would directly conflict with a chaplain's responsibility to provide the full spectrum of religious counsel." (796) The brief predicted that chaplains and service members who belonged to "faith groups that support traditional marriage" would face a stark, forced choice between "their duty to obey God" and "their chosen vocation of serving their country" if laws "affirming marriage as the union of one man and one woman are invalidated as irrational and unconstitutional." (797)
Other amici warned that a civil regime recognizing same-sex marriage would create a new governmental orthodoxy at odds with religious liberty. For example, the Manhattan Declaration brief asserted that "redefining marriage imperils religious liberty and oftentimes requires that freedom of conscience be sacrificed to the newly regnant orthodoxy." (798) A new marriage regime that recognized same-sex marriage, it asserted, would "circumscribe the ability of the Christian faithful to put their beliefs into practice." (799) The brief included various examples, such as Christian adoption agencies shutting down because of their refusal to place children with same-sex couples, religious parents' inability to remove their children from public school classes advocating marriage equality, and Christian organizations having to end all medical insurance for employees' spouses because they do not want to cover same-sex spouses. (800) The brief further contended that Christians would be limited in how they could educate their children. (801) The brief asserted that "[r]eligious freedom is our first, most cherished liberty" and should not be infringed upon by same-sex marriage. (802)
Some religious amici contended that their religious objections to same-sex marriage were not animus, and that for government to fail to credence those objections infringed upon their religious liberty. For example, the Liberty, Life and Law Foundation and North Carolina Values Coalition similarly warned that marriage equality would infringe upon the "moral code of behavior" typical of religions, including the regulation of sexual conduct, with the result that "[a] state mandate to affirm same-sex marriage would have an explosive impact on religious persons who could easily treat all individuals with equal respect and dignity but cannot in good conscience endorse or facilitate same- sex marriage." (803) The Foundation further argued that "[a] person's religiously motivated refusal to recognize same-sex unions is not tantamount to unlawful discrimination, nor is it irrational animosity," and that, "[t]o hold otherwise would exhibit callous disregard for religion." (804) The evident logic of the Foundation's argument is that the Constitution protects religious beliefs and conduct, and, thus, morality based on religion provides a valid rationale for opposing same-sex marriage. The Foundation analogized to case law crediting conscientious religious beliefs in other contexts, concluding: "[t]he government must avoid showing hostility to religion by refusing to acknowledge religious motivation." (805)
(b) Arguments for Windsor
Amici filing in support of Windsor emphasized the distinction between civil and religious marriage, and that redefining the former did not unconstitutionally burden the latter. They further pointed out that religious exemptions were a means of ensuring religious liberty. For example, the brief submitted by the Bishops of the Episcopal Church in California, New York, and several other states, the Jewish Theological Seminary, and numerous other religious groups noted a growing affirmation by religious faiths of the "dignity" of same-sex relationships and family life:
The American religious panorama embraces a multitude of theological perspectives on lesbian and gay people and same-sex relationships. A vast range of religious perspectives affirms the inherent dignity of lesbian and gay people, their relationships, and their families. This affirmation reflects the deeply rooted belief, common to many faiths, in the essential worth of all individuals and, more particularly, the growing respect accorded within theological traditions to same-sex couples. (806)
The brief insists on the constitutional importance of the distinction between civil and religious marriage:
Certain amici supporting reversal have argued that civil recognition for the marriages of same-sex couples would alter a longstanding 'Christian' definition of 'marriage.' But this and other religiously based arguments for limiting civil recognition of marriage to different-sex couples cannot constitutionally be given weight by this Court. Crediting such arguments would improperly both enshrine a particular religious belief in the law--itself prohibited under the Establishment Clause--and implicitly privilege religious viewpoints that oppose marriage equality over those that favor it. (807)
The brief then argues that "[e]liminating discrimination in civil marriage will not impinge upon religious doctrine or practice," since "[a]ll religions would remain free--as they are today with nine states and the District of Columbia permitting same-sex couples to marry--to define religious marriage in any way they choose." (808) The brief first points out that "[t]he types of conflicts forecast by certain other amici already can and sometimes do arise under public accommodation laws whenever religiously affiliated organizations operate in the commercial or governmental spheres," and "[c]ourts know how to respond if enforcement of civil rights laws overreaches to infringe First Amendment rights." (809) "In any event," the brief concluded, "the issue largely is irrelevant here, because the couples affected by the Defense of Marriage Act ("DOMA") already are lawfully married under state law." (810)
Other amici also stressed that, under the Establishment Clause, religious groups do not have "the right to have their religious views written into law so that others may be compelled to follow them." (811) Addressing claims by amici that "their "religious liberty' ... would be violated if this Court confirms a right to legal equality for gays and lesbians," because of "their Bible's condemnation of homosexuality," the American Humanist Association asserted that, "[b]ecause the First Amendment forbids, rather than requires, any law solely grounded in or codifying a religious 'moral' commandment, such objections can be accorded no weight." (812) Other amici stressed the insufficiency of moral disapproval, even if rooted in religious belief. Thus, the Anti-Defamation acknowledged the importance of religion in American life and that religious beliefs undoubtedly guided many lawmakers, but explained that, "under a line of cases including this Court's decision in Lawrence v. Texas, a law must be rationally related to a legitimate government interest beyond the desire to disadvantage a group on the basis of moral disapproval." (813)
Some amici urged the Court to "bring healing to the nation by demonstrating that the humanity of gay citizens can be reconciled with respect for religious freedom":
The Constitution guarantees both the right of gay people to be treated as equals under civil law and the right of individuals and organizations to hold beliefs about homosexuality in accordance with their own consciences. By treating homosexuality in the secular context with neutrality, and by affirming that all people--whether gay or straight--are entitled to equal treatment under the Constitution, this Court can unify the country around our shared values of liberty and justice for all. (814)
One amicus who filed a brief in support of Windsor and Perry, the American Jewish Committee (AJC), supported the state's authority to redefine civil marriage, but also urged that broad protections of religious liberty were necessary if the state did so. (815) Similar to some amici supporting DOMA, AJC "agree[s] that significant religious liberty issues will follow in the wake of same-sex civil marriage," but it also argued that the issues could be remedied if "each claim to liberty in our system ... [is] defined in a way that is consistent with the equal and sometimes conflicting liberty of others." (816) Thus, there would be "no burden on religious exercise when the state recognizes someone else's civil marriage," but there would be if "the state demands that religious organizations or believers recognize or facilitate a marriage in ways that violate their religious commitments." (817) The AJC saw parallels between the gay rights movement and its own assertion of the need for religious liberties:
Both same-sex couples and religious dissenters also seek to live out their identities in ways that are public in the sense of being socially apparent and socially acknowledged ... Religious believers ... claim a right to follow their faith not just in worship services, but in charitable services provided through their religious organizations and in their daily lives. (818)
As did some religious amici supporting BLAG, the AJC identified a variety of situations in which religious liberty might be compromised, including marriage counseling by clergy and housing in religious colleges. (819) As one way to address these conflicts, the AJC also proposed that the Court reconsider Employment Division v. Smith, so that religious actors would be exempt from generally applicable laws that infringe on their freedoms unless application of the statute can survive heightened scrutiny. (820)
4. Arguments about Letting the People Decide/Political Power and Powerlessness
(a) Arguments for BLAG
Amici for BLAG made various arguments that the Court should not strike down DOMA because it would interfere with letting the people decide. Above, I discussed the theme that the Nation was involved in a debate over marriage. Additional lines of argument stressed the impact on state sovereignty and state legislative processes. For example, Indiana and sixteen other states argued that "a judicial rejection of DOMA would erode constitutional support for similar state laws." (821) In a remarkable analogy, the Eagle Forum compared gay rights activists to southern slave owners: just as the slave owners triumphed in Dred Scott v. Sanford in forcing free states to recognize slavery, same-sex marriage supporters now "seek to compel the United States and forty-one other states to recognize the same-sex marriage regimes of a few states." (822) It also insisted that "the claimed right [by same-sex couples to marriage] was in no way conveyed by the People to the Judiciary to dispense," thus," [t]o ensure its legitimacy as an arbiter--not author--of our laws, this Court must extricate itself from this slippery slope" of defining marriage. (823)
Concerned Women for America similarly urged the Court not to "cut off" the debate over the definition of marriage, because different viewpoints "should be respected and debated as part of the democratic process." (824) The gist of CWA's brief was to chronicle the success of gay men and lesbians in the political process, both at the state and federal level, to demonstrate that they lacked the "political powerlessness" needed to be a suspect of quasi-suspect group. (825) Indeed, CWA contended that, "[i]f anything, they hold disproportionate political power in comparison to their numbers," noting their ability to attract "the attention of lawmakers," the President, and others. (826) In seeing the accelerating trend toward victory by gay men and lesbians in the political arena, CWA's brief stands in remarkable contrast to its brief in Romer, which enlisted the vote on Amendment 2 as evidence of the majority's disapproval of homosexuality. (827) At the same time, there is continuity with the past since proponents of Amendment 2 sought to counter a perceived disproportionate political power of homosexuals in municipalities.
(b) Arguments for Windsor
By contrast to the picture painted by CWA of increasing political power, amici Utah Pride Center contended that the many states with DOMAs and other discriminatory laws "have constructed systems of de jure (by law) denigration of gay citizens. Millions of gay citizens live in these states, including many of the states now urging this Court to preserve laws that both offend the Constitution and do harm to the lives of gay Americans." (828) The enactment of such laws, the brief argued, evidenced the "political vulnerability of gay Americans," who were "not able to prevent the enactment of laws that demoted them to second-class citizenship," and "lack both the political power and the realistic prospect of attaining full equality through democratic processes." (829) The brief observed that although "prejudice against gay people is inherently irrational," so that "laws burdening them should not be able to survive even rational basis review," heightened scrutiny was warranted to protect the constitutional rights of "gay Americans" in light of the long history of discrimination against them and because "gay citizens in Utah and other states have been--and will remain, perhaps indefinitely--unable to vindicate their right to legal equality through democratic processes." (830)
E. United States v. Windsor: Justice Kennedy Completes a New Trio
On June 26, 2013, the Supreme Court announced its rulings in both cases. In Hollingsworth v. Perry, (831) the Proposition 8 case, the Court held that the proponents of Proposition 8 did not have standing to appeal the district court's decision, with Justice Kennedy dissenting (joined by three justices). By contrast, in another 5-4 split, the Court did reach the merits in Windsor v. United States, in an opinion authored by Justice Kennedy quickly hailed as a landmark by some and decried as judicial overreaching by others. In this section, I highlight the role played by Romer in Justice Kennedy's opinion and how, along with Lawrence, it featured as a template for the majority's conclusion that Section 3 violated Equal Protection and inflicted injury and indignity on lawfully married same-sex couples. Now, in addition to the Cleburne-Moreno-Romer trio in Equal Protection jurisprudence, Windsor completes a new trio of landmark rulings by the Court, all authored by Justice Kennedy, about the status of gay men and lesbians. Justice Kennedy's majority opinion struck down Section 3 without moving to the intermediate scrutiny urged by the DOJ and the Second Circuit, and instead confirmed--as the district court in Windsor and the First Circuit discerned--that Romer supports a more searching form of rational basis review.
I then turn to the dissenting opinions by Justices Alito, Roberts, and Scalia. Justice Alito's dissent, in particular, suggests the road not taken by the Supreme Court but urged by many amici who supported BLAG: the country is in the midst of a robust debate over competing conceptions of marriage, and which view should prevail is a matter for "We the people" to decide, not the Supreme Court. (832) Alternatively, the dissenters argued, on the merits, that ample reasons for Section 3 existed to satisfy an ordinary rational basis test, which was the only test the Court should apply.
1. Romer Is the Template for Justice Kennedy's Opinion
In his majority opinion in Windsor, Justice Kennedy builds on the foundation laid in Romer and expanded in Lawrence. Although there are only a few explicit citations to Romer, the logic of the Romer opinion permeates Kennedy's majority opinion in Windsor. Like Justice Kennedy's opinion in Romer, Windsor is a combination of judicial minimalism and avoidance, on the one hand, and, on the other, a robust (or more maximalist) vision of equality and the status of equal citizenship. (833)
First, the minimalism and avoidance: in dissent, Justice Scalia sharply charges: "the opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality." (834) This is not entirely correct, since the majority mentions that the Attorney General, the President, and the Second Circuit concluded that intermediate scrutiny should apply and that Section 3 could not survive such review. (835) More than once, the majority refers to the fact that the Executive reached this conclusion about heightened scrutiny and made the decision not to defend DOMA's constitutionality, relying on a "definition still being debated and considered in the courts" and "based on a constitutional theory not yet established in judicial decisions." (836) Scalia is correct, however, that the majority declines to use Windsor as a vehicle to establish that constitutional theory.
Scalia's formulation leaves out, however, the very thing that the Windsor majority opinion does do: it enlists Romer to support a form of rational basis review that is more than "mere rationality." Thus, after observing that Section 3 of DOMA, "because of its reach and extent, departs from [the] history and tradition of reliance on state law to define marriage," Justice Kennedy appeals to Romer: "'[D]is criminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision."' (837) Justice Kennedy returns to that same "careful consideration" formulation in indicating how the Court should determine "whether a law is motivated by an improper animus or purpose." (838) After observing that "DOMA seeks to injure the very class New York seeks to protect," he also turns to Moreno, on which Romer drew in evaluating Amendment 2: "The Constitution's guarantee of equality 'must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot' justify disparate treatment of that group.'" (839) His opinion concludes that "DOMA cannot survive under these principles." (840)
Beyond these explicit references to Romer, Justice Kennedy's opinion also uses Romer as a template for the Constitution's prohibition on adopting a sweeping law that makes a class of persons strangers to its laws. Thus, he states that, while New York sought to "eliminate inequality" by adopting a law to permit same-sex marriage, "DOMA writes inequality into the entire United States Code." (841) In an echo of Romer's conclusion that Amendment 2 "classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else," Justice Kennedy concludes: "DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal." (842) Similarly, he finds that Section 3's "demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law." (843) Also reminiscent of Romer is the majority's language that DOMA "singles out a class of persons" and "imposes a disability on the class." (844) While the conflict in Romer concerned an effort to reverse, at the state level, protections secured at the municipal level, in Windsor, Kennedy stresses that DOMA refuses "to acknowledge a status the State finds to be dignified and proper." (845)
There are also echoes, in Windsor, of Romer's emphasis upon Amendment 2's infliction of injuries upon the daily lives of homosexuals that "outrun and belie any legitimate justifications that may be claimed for it." (846) In Windsor, Justice Kennedy states that, under DOMA, "same-sex married couples have their lives burdened ... in visible and public ways," because DOMA "touches many aspects of married and family life, from the mundane to the profound." (847)
Justice Kennedy concludes that "no legitimate purpose overcomes [Section 3's] purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity." (848) Better to appreciate that conclusion, I will now consider how Lawrence's concern for dignity and respect and law not demeaning the personhood of homosexuals contribute to the majority's analysis, including its account of why the status of marriage matters. Implicitly, Lawrence also informs the Court's evaluation of DOMA as a vehicle for moral disapproval of homosexuality and moral approval of traditional marriage.
2. Dignity, Respect, and the Status of Marriage: The Role of Lawrence
One significant aspect of the Windsor majority opinion is Justice Kennedy characteristic appeal to "dignity" as he explains the injury that DOMA inflicts on lawfully married same-sex couples. Lawrence is a significant template, even though, in that case, the Court cautioned that it was not addressing marriage (that is, "formal recognition of any relationship that homosexual persons seek to enter"). (849) In Windsor, formal recognition by the federal government of a relationship permitted and recognized by state law was at stake. Justice Kennedy explains that marriage bestows "status and dignity," but, until recent decades, "many citizens" did not even imagine that same-sex couples, like Edith Windsor and Thea Spyer, "might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage." (850) Here Justice Kennedy combines minimalism or avoidance with substantive and stirring rhetoric about the goods of marriage and the status it bestows. His opinion is minimalist because, rather than anchor his discussion of the dignity and respect linked to marital status to the fundamental federal constitutional right to marry, (851) he chronicles the evolving understanding of marriage and equality in states, like New York, as they "came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community." (852) New York, like" 11 other states and the District of Columbia, decided that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons." (853) New York's citizens and elected representatives, "after a statewide deliberative process," acted to "correct" what they now perceived "to be an injustice that they had not earlier known or understood." (854)
This language resembles Justice Kennedy's statements in Lawrence about evolving understandings of the constitutional status of homosexuals and his concluding statement that "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress." (855) In Windsor, however, it is an evolutionary process engaged in by citizens and their elected representatives, where "New York was responding 'to the initiative of those who [sought] a voice in shaping the destiny of their own times."' (856) In Lawrence, persons sought to shape their destiny through constitutional litigation about the "components of liberty," for "[a]s the Constitution endures, persons in every generation can evoke its principles in their own search for greater freedom." (857)
I do not want to overstate the contrast here between constitutional and legislative change, since Kennedy acknowledges that the process by which some states (like Massachusetts) have reached this new understanding was through state constitutional litigation. (858) Thus, his general point that DOMA refuses to afford dignity and respect to marriages recognized by states and, thus, "demeans" those couples is not confined only to those states who changed their domestic relations law solely through the democratic process, without the spur of constitutional litigation. (859) The relevant point, for Justice Kennedy's conclusions about DOMA's constitutional infirmity, is that states had conferred upon same-sex couples the right to marry.
Justice Kennedy's opinion offers a robust picture of why marriage matters: New York's decision to give same-sex couples the right to marry "conferred upon them a dignity and status of immense import;" it "enhanced the recognition, dignity, and protection of the class in their own community." (860) Analogizing to Lawrence's assertion that"'[p]rivate, consensual sexual intimacy between two adults persons of the same sex'" is "'but one element in a personal bond that is more enduring,'" Justice Kennedy reasons that, "[t]he States' interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits." (861) The marital status conferred by New York on same-sex couples "is a far-reaching legal acknowledgement of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages." (862) When federal law declines to recognize those marriages, then, it ignores "the [state] community's considered perspectives on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality." (863)
3. DOMA's Denial of Dignity: Moral Disapproval of a Class
Romer and Lawrence also shape Justice Kennedy's treatment of the constitutional status of moral disapproval. In explaining the injury that Section 3 inflicts, Justice Kennedy contrasts New York's attempt to confer dignity and respect on a class by changing its marriage laws to allow same-sex couples to marry (and, prior to that, recognizing Edith Windsor's out-of-state marriage) with DOMA's denial of such dignity and respect. Indeed, Justice Kennedy concludes that "interference with the equal dignity of same-sex marriages,.... conferred by the States in the exercise of their sovereign power" was DOMA's "essence." (864) He finds powerful evidence in the House Report's appeal to defending "the institutional of traditional heterosexual marriage" and its conclusion "that DOMA expresses 'both moral disapproval of homosexuality and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.'" (865) Here, the Moreno and Romer framework combine with a federalism argument to support Justice Kennedy's conclusion that DOMA's "unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage" is "strong evidence of a law having the purpose and effect of disapproval of that class." (866) Section 3's "avowed purpose and practical effect" are "to impose a disadvantage, a separate status, and so a stigma" on same-sex couples lawfully married under the "unquestioned authority of the States." (867)
Justice Kennedy concludes that "the arguments put forward by BLAG are just as candid about the congressional purpose to influence or interfere with state sovereign choices about who may be married," since "the goal was 'to put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws.'" (868) Moreover, Section 3's constitutionally problematic purpose was to treat "as second-class marriages for purposes of federal law" any same-sex marriages that states decided to recognize. (869) By contrast to the lower courts in Windsor (including Judge Straub's lengthy dissent), Justice Kennedy does not mention, let alone evaluate, rationales such as "caution," consistency and uniformity of benefits, and responsible procreation and optimal childrearing. He does, however, emphasize a different aspect of uniformity from which DOMA departs: "DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next." (870)
Turning to DOMA's effect, Justice Kennedy stresses the sweep of DOMA: it controls "over 1,000 statutes and numerous federal regulations." (871) Here, the opinion stresses how federal law shapes the lives of persons lawfully married under state law. Articulating an aspect of marriage that I have elaborated elsewhere, the opinion explains that marriage entails rights and responsibilities, and that both "enhance the dignity and integrity of the person." (872) DOMA, however, deprives same-sex couples lawfully married under state law--but not opposite-sex couples--of "both rights and responsibilities." (873) Later, Justice Kennedy reiterates: "DOMA divests married same-sex couples of the duties and responsibilities that are an essential part of married life and that in most cases would be honored to accept were DOMA not in force." (874) In insisting that the dignity that the status of marriage brings includes responsibilities, and not only rights, Justice Kennedy powerfully, if implicitly, challenges a view that the basic purposes and goods of marriage cannot survive an expanded definition of why may marry.
Emphasizing the broad scope of federal regulations bearing on marriage, Justice Kennedy states that "DOMA touches many aspects of married and family life, from the mundane to the profound." (875) Not only does its creation of "two contradictory marriage regimes within the same State" diminish "the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect," but it tells those same-sex couples that "their otherwise valid marriages are unworthy of federal recognition." (876) DOMA also "humiliates tens of thousands of children now being raised by same-sex couples." (877) Without explicitly addressing whether such couples have a federal constitutional right to marry, Justice Kennedy appeals to Lawrence: "the differentiation demeans the couple, whose moral and sexual choices the Constitution protects ... and whose relationship the State has sought to dignify." (878) Several times, Justice Kennedy repeats that DOMA "demeans" persons in "a lawful same-sex marriage," explaining that the Fifth Amendment's Due Process Clause bars from government from doing so. (879) Justice Kennedy concludes: "The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State by its marriage laws, sought to protect in personhood and dignity." (880) The crucial constitutional point is that DOMA seeks to "displace" this state protection by "treating those persons as living in marriages less respected than others." (881) In a sentence that receives much parsing in the dissents, he further adds: "This opinion and its holding are confined to those lawful marriages."
In sum, both Romer and Lawrence provide a foundation for the majority's opinion in Windsor. This role is evident both in explicit references by Justice Kennedy to these two cases as well as in the vocabulary and concepts that he employs. These precedents, as well as the "background of lawful same-sex marriage" in some states, shape his evaluation of "the design, purpose, and effect of DOMA." (882) In sum, given the "moral disapproval" DOMA expressed for homosexuals and its aim of "defending" marriage even by failing to recognize marriages valid under state law, the majority places DOMA in the category of "'discrimination of an unusual character,'" which cannot survive "careful consideration." (883)
Does Windsor imply, notwithstanding Kennedy's penultimate sentence about the reach of the majority opinion and holding, that states' defense of marriage statutes and constitutional amendments violate the federal constitution for the same reasons that Section 3 of DOMA is unconstitutional: that they reflect discrimination of an unusual character, disapprove of and single out a class of relationships, and "demean" and "humiliate" same-sex couples? The dissenters disagreed sharply over the answer to this question. On two points, however, they united: (1) the Court should have let "the people" resolve the debate over marriage and not taken sides; and (2) in striking down Section 3 of DOMA, the majority failed to credence ample and legitimate rationales for DOMA that could survive ordinary rational basis review, thus tarring Congress and persons who adhered to the traditional definition of marriage as "bigots."(884) I will begin with a brief discussion of Chief Justice Roberts' comparatively short dissent, and then discuss those by Justices Alito and Scalia.
F. The Windsor dissents
1. Chief Justice Roberts
Chief Justice Roberts's dissent primarily makes the point that the majority should be taken at its word when it confines its ruling to "lawful marriages" (under state law) of same-sex couples and that the Court "does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their 'historic and essential authority to define the marital relation' ... may continue to utilize the traditional definition of marriage."(885) He views that "logic" as being confined to the situation where a State recognizes same-sex marriages and the federal government intrudes "into an area "central to state domestic relations law applicable to its residents and citizens'" by not recognizing those marriages. (886) While the Chief Justice does not agreed with the majority's conclusion, the salient point, he insists, is that it is "based on federalism" and does not address the constitutionality of state marriage definitions. (887) It is not a departure from federalism, he argues, when states exercise their power and define marriage different ways, so that there is not uniformity from one state to the next. (888) Inapplicable to a "State's decision whether to expand the definition of marriage from its traditional contours" will be the majority's concern that, through DOMA, the federal government "undermined" dignity conferred by states exercising their "sovereign power." (889)
Chief Justice Roberts nowhere mentions Romer, Lawrence, or the constitutional status of moral disapproval as a rationale for DOMA. He simply indicates that he rejects the majority's conclusion that DOMA's "principal purpose"--or lawmakers' motive for it--was "a bare desire to harm." (890) The Act's "banal title" and the "snippets of legislative history" cited by the majority do not make such a showing and, he continues, "without some more convincing evidence that the Act's principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry." (891)
2. Justice Alito's Dissent and the Road Not Taken: a Debate over Competing Views of Marriage
Justice Alito, joined by Justice Thomas, framed Edith Windsor's challenge to DOMA and her request that the Court apply heightened scrutiny as asking the Court to "intervene" in a debate about "the nature of the institution" of marriage, and, specifically, between two views of marriage, which he called the "traditional" or "conjugal" view and the "consent-based" view. (892) The Constitution, Justice Alito stated, "does not codify either of these views," although he offers in an aside that, when the Fifth Amendment and the Constitution were adopted, "it would have been hard ... to find Americans who did not take the traditional view for granted." (893) Rather than endorse the "consent-based view," as Windsor (Alito asserts) asked the Court to do, the Court should leave it to "the people." (894) I refer to this dissent as the road not taken because Justice Alito sounds themes prominent in several of the amicus briefs, analyzed in Part IV.D, with respect to how to flame the issue and because he addresses the merits of the call for intermediate scrutiny.
While Justice Kennedy's majority opinion framed the pertinent issue as the clash between efforts by states, through revised marriage laws, to confer status and dignity and DOMA's purpose and effect of refusing to recognize that status, Justice Alito frames the problem of competing visions of marriage as a question that "philosophers, historians, social scientists, and theologians are better qualified [than the Court] to explore" and that "the people" are entitled to resolve. (895) Although Alito does not cite to any specific amicus briefs in elaborating the two competing visions he perceives, he cites to works by authors who filed amicus briefs as he describes the "conjugal" view, which "sees marriage as an intrinsically opposite-sex institution," one "inextricably linked to procreation and biological kinship." (896) Without any citations, he characterizes the "consent-based" vision, dominant in "the popular understanding of the institution," as viewing marriage as "the solemnization of mutual commitment marked by strong emotional attachment and sexual attraction--between two persons," where "gender differentiation is not relevant." (897)
Where Justice Kennedy concludes that DOMA unconstitutionally "singles out" a class of persons a State deems entitled to "recognition and protection," Justice Alito concludes that neither state governments nor the "political branches of the Federal Government" need be neutral "between competing visions of the good, provided that the vision of the good that they adopt is not countermanded by the Constitution;" thus, "[b]oth Congress and the States are entitled to enact laws recognizing either of the two understandings of marriage." (898) Thus, when Justice Alito asserts that the "ultimate sovereignty" to decide the question about same-sex marriage rests with "the people," who have a right to "control their own destiny," he implicitly includes the American people, through their elected federal representatives, and the people of particular states, as in New York.
Romer features in his opinion simply to support the idea that, under rational basis review, courts have "long recognized that 'the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantages to various groups or persons.'" (899) While Justice Kennedy stresses the need for careful consideration, Justice Alito counters (enlisting Cleburne) with a longstanding judicial reluctance "to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued." (900) There is no place for the Moreno-Cleburne-Romer template in Justice Alito's vision of equal protection. Additionally, he critiques the request by Windsor and the United States for heightened scrutiny, contending that they request a ruling that "the presence of two members of the opposite sex is as rationally related to marriage as white skin is to voting or a Y-chromosome is to the ability to administer an estate." (901) To grant such a request, he asserts, "would cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools."(902) Instead, Justice Alito counters, the Court should stay out of the debate (noted above) between two competing views of marriage.
Justice Alito also rejects the majority's analysis of how Section 3 unconstitutionally singles out a class. Section 3, he concludes, does not "encroach on the prerogatives on the States" to recognize same-sex marriage or extend to same-sex couples "any right, privilege, benefit, or obligation stemming from state law," but instead "defines a class for purposes to whom federal law extends certain special benefits and upon whom federal law imposes certain special burdens." (903) Congress, he assumes, did so "because it viewed marriage as a valuable institution to be fostered and in part because it viewed married couples as comprising a unique type of economic unit that merits special regulatory treatment." (904) Justice Alito's dissent nowhere mentions the language in the House Report, cited by Justice Kennedy, about Congress seeking to express moral disapproval of homosexuality. He instead seems to embrace, without explicitly citing to, BLAG's and various amici's appeal for "caution," that is, that because "the family is an ancient and universal human institution," and changes in its structure "can have profound effects," as evidenced by "far-reaching consequences" of "past changes in the understanding of marriage," one can expect that there will be long-term consequences "if same-sex marriage becomes widely accepted."(905) This discussion, however, does not take place in his exposition of the rationales for DOMA, but in his characterization of the stance of Windsor and the United States as seeking recognition of "a very new right." (906) Strikingly, after first stating that "[t]he Constitution does not guarantee the right to entire into a same-sex marriage," Justice Alito observes: "Indeed, no provision of the Constitution speaks to the issue." (907) Of course, no provision speaks to marriage of any sort, and yet the Court has long held that Due Process liberty includes a fundamental right to marry. (908) Justice Alito concedes, without mentioning the right to marry cases, that the Court "has sometimes found the Due Process Clauses to have a substantive component" of liberty, beyond physical restraint, but insists "it is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation's history and tradition." (909) In any event, this federal constitutional interpretation question is beside the point: Windsor's challenge to DOMA did not raise the question of whether the federal constitution required that same-sex couples be allowed to marry, for she was validly married under state law. By framing the inquiry in terms of the scope of due process liberty under the federal constitution, Alito delves into the very issue Justice Kennedy's majority opinion avoids in focusing on the evolving definition of marriage in state law. But Justice Alito, in turn, avoids giving an adequate answer to the Equal Protection issue: can Congress constitutionally define marriage, for purposes of federal law, in a way that denies recognition to a class of marriages valid under state law?
3. Justice Scalia's Dissent: Affirming Law as a Vehicle for Moral Disapproval and Predicting the End of Traditional State Marriage Laws Justice Scalia accuses the majority of being "hungry" to "tell everyone its view of the legal question at the heart of this case," so much so that it leaps over the "technicality" that it does not have Article III power because there is no proper "case and controversy" before the Court. (910) I will not address his jurisdictional argument, because the salient point of Justice Scalia's characterization, for purposes of this article, is his charge that the majority has distorted "our society's debate over marriage" and "by formally declaring anyone opposed to same-sex marriage an enemy of human decency," armed "every challenger to a state law restricting marriage to its traditional definition." (911) Like Justice Alito and various amici supporting BLAG, Justice Scalia frames the issue as a matter of debate that "we the people" should decide without interference by the Court. He states: "Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides." (912) He stresses that citizens "have seen victories and ... defeats," as the democratic system unfolds, and that (using Maine as an example), "the question has come out differently on different occasionso" (913) Accusing the majority of lacking the "judicial temperament" to "let the People decide," Justice Scalia charges that "in the majority's telling, this story is black-and-white: Hate your neighbor or come along with us." (914)
Turning to the merits of the majority's analysis of Section 3, Justice Scalia begins by chiding the majority for failing to address the issue of whether more than "mere rationality" review should be applied to "laws restricting marriage to a man and a woman." (915) He argues that "rationality" should apply, but charges that the Court "certainly does not apply anything that resembles the deferential framework." (916) Similar to Justice Alito, he observes that the majority does not and could not--contend that same-sex marriage is "deeply rooted" so that "a world in which DOMA exists is one bereft of 'ordered liberty.'" (917)
Focusing on DOMA as expressing moral disapproval, Justice Scalia quotes his dissent in Lawrence: "the Constitution does not forbid the government to enforce traditional moral and sexual norms." (918) Like Alito, he then observes that "the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol." (919) In other words, moral disapproval should be a constitutionally sufficient basis for DOMA. Justice Scalia continues that, "even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid--indeed, downright boring - justifying rationales for" DOMA, which "ought to be the end of this case." (920) Scalia characterizes the majority's opinion, instead, as concluding that "only those with hateful hearts could have voted 'aye'" for DOMA, and that "the only motive" for it was "the 'bare ... desire to harm a politically unpopular group.'" (921) Justice Scalia counters that, not only should legislative motive--or what is in "legislators' hearts'--be irrelevant, but the majority "affirmatively conceal[s] from the reader the arguments that exist in justification for DOMA," contributing to "the illusion of the Act's supporters as unhinged members of a wild-eyed lynch mob." (922) While Justice Kennedy never drew an explicit analogy to race or racial prejudice, Justice Scalia's intemperate and inflammatory allusion to racially motivated violence here is reinforced by his reference to the Court's earlier scorn for and condemnation of "some once-Confederate Southern state." (923) Later, Justice Scalia accuses the Court of "adjudging those who oppose" change in the definition of marriage as "enemies of the human race."(924)
Justice Scalia casts Justice Kennedy's conclusion that the purpose and effect of DOMA was to "demean," "disparage and injure" same-sex couples as saying that DOMA's supporters "acted with malice," and responds that he is "sure these accusations are quite untrue." (925) Deploying the majority's rhetoric, Scalia counters: "To defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution." (926) This is a curious way to frame the issue, since Windsor was asking the federal government to recognize her marriage, not an alternative arrangement, but on Scalia's logic, Congress may defend "traditional marriage" even if states, the entities empowered to license marriage, now view that definition as unjust and unjustifiable. Justice Scalia explains that all DOMA did was to "codify an aspect of marriage that had been unquestioned in our society for most of its existence--indeed, had been unquestioned in virtually all societies for virtually all of human history." (927) While Justice Scalia excoriates the majority for characterizing DOMA's purpose in terms injuring and disparaging homosexuals, Scalia's calm and minimalist description of DOMA's purpose simply leaves out the Report's heated warnings of an "orchestrated legal assault being waged against traditional heterosexual marriage." (928) This may simply be the "traditional moral disapproval of same-sex marriage" that Justice Scalia has stated is not forbidden by the Constitution. (929)
Beyond maintaining the traditional definition of marriage or expressing moral disapproval, Justice Scalia contends that BLAG offered ample arguments for DOMA. He focuses on just one: "DOMA avoids difficult choice-of-law issues that will now arise absent a uniform federal definition of marriage." (930) This is BLAG's argument about uniformity of and certainty concerning eligibility for federal benefits. Justice Scalia offers hypotheticals about problems federal agencies will face in sorting out whether a migratory couple is eligible for benefits, and whether the rule will be to follow the law of their "State of celebration" or their "State of domicile." (931)
The majority also fails to mention, Justice Scalia adds, BLAG's caution argument: Section 3 "was enacted to ensure that state-level experimentation did not automatically alter the basic operation of federal law, unless and until Congress made the further judgment to do son on its own." (932) "That is not animus," he asserts, "just stabilizing prudence." (933) Congress, he adds, is capable of revisiting its judgments, "upon due deliberation," as the repeal of Don't Ask Don't Tell indicates. (934)
Perhaps the most scathing part of Justice Scalia's dissent is the connection he makes between the majority's Lawrence and Windsor opinions with respect to their disclaimers about marriage. Although the majority in Lawrence said its opinion did not address formal recognition of same-sex relationship, Justice Scalia famously countered: "Do not believe it." (935) Scalia contended that "if moral disapprobation of homosexual conduct is 'no legitimate state interest' for purposes of proscribing that conduct,.... what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising '[t]he liberty protected by the Constitution?" (936) The Windsor majority, Justice Scalia observes, now appeals to Lawrence to say that "DOMA is invalid because it 'demeans the couples, whose moral and sexual choices the Constitution protects.'" (937) He charges that the majority has indicated the view it will take "of state prohibition of same-sex marriage," asserting that its conclusion that DOMA "'is motivated by 'bare ... desire to harm"" can be easily applied to "state laws denying same-sex marital status." (938) Scalia concludes: "that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the 'personhood and dignity' which state legislatures conferred upon them will of a certitude be similarly appalled by state legislatures' irrational and hateful failure to acknowledge that 'personhood and dignity' in the first place." (939)
Thus, just as Windsor makes a trio of opinions by Justice Kennedy elaborating the constitutional protections due to homosexual persons, Justice Scalia's dissent joins his Romer and Lawrence dissents to make a trio of blistering dissents in which he accuses the majority of taking sides in a cultural and political debate about which the Constitution says nothing and coming down in favor of the rights of homosexuals and branding defenders of traditional morality and traditional marriage bigots. In all three, he reaffirms his view that the constitution permits using law as a vehicle to express moral disapproval.
CONCLUSION: LAW, MORALITY, HOMOSEXUALITY, AND MARRIAGE IN THE POSTWINDSOR LANDSCAPE
This article has looked back at Romer v. Evans and then looked forward to its deployment in the successful challenge to the Defense of Marriage Act in United States v. Windsor to study the evolution in constitutional law and in society concerning using law as a vehicle to express moral disapproval of homosexuality and to promote and defend traditional heterosexual marriage. The image of a changed landscape is at risk of overuse, given how dramatic the evolution has been, but it is still powerful. It gets at the spatial or territorial dimension of the issue, for example, the enactment of Amendment 2 at the state-wide level to counteract developments at the municipal level or the enactment of DOMA at the federal level to ward off a perceived threat by "activist" judges in particular states. The landscape image also captures, as Justice Kennedy's majority opinion in Windsor illustrates, the evolution within a state on the marriage issue, such as New York's evolving understanding of the injustice of excluding same-sex couples from marriage. Further, the landscape image capably includes calls, as in the Windsor dissents and many amicus briefs filed in support of BLAG, for the Supreme Court to "let the people decide," rather than to resolve a robust national "debate" over marriage.
By focusing on amicus briefs filed in these two constitutional litigations, I have been able to analyze forms of argument made then, at the time of the Romer litigation, about the use of law to express moral disapproval of homosexuality and to preserve traditional morality and traditional heterosexual marriage, and now, in the recent Windsor litigation. I have focused on how Romer deployed, and then joined, two significant Equal Protection cases, Cleburne and Moreno, to become part of a trio of cases supporting a more searching form of rational basis review warranted when confronting "discriminations of an unusual character." (940) That trio, along with Lawrence, supported arguments for the unconstitutionality of Section 3 of DOMA. Justice Kennedy's majority opinion in Windsor now joins Romer and Lawrence to create a new, significant trio of landmark cases about the constitutional status of gay men and lesbians and to identify Justice Kennedy, as Evan Wolfson recently put it, as "the towering giant in the jurisprudence of freedom and equality for gay people." (941) So, too, Justice Scalia's Windsor dissent completes a trio of excoriating dissents that insist upon the constitutionality of using law to promote traditional marriage and express moral disapproval of homosexuality and that reject the existence or propriety of the more careful form of rational basis review that the majority applied.
One take-away message from this article's retrospective is the usual one about how significant and outcome-determinative the particular membership of the Supreme Court is, with the caveat that the development of a particular justice's jurisprudence may confound expectations. This observation is particularly astute given the changing constitutional landscape from Bowers, decided one year before President Ronald Reagan nominated Justice Kennedy to the Supreme Court, (942) to Lawrence and then to Windsor. As Court-watcher Adam Liptak recently observed, at the time of Kennedy's nomination, he had voted against gay rights claims "every time," and gay rights advocates considered him a "'likely vote against us on most matters to come before the Supreme Court." (943) On the other hand, one month after Bowers, then-Judge Kennedy expressed public reservations about the Court's ruling, contrasting it with a European Court of Human Rights decision striking down Northern Ireland's sodomy law-a decision to which he would later refer in his Lawrence opinion, striking down Texas's law. (944) The Court might have followed a very different trajectory had the seat Anthony Kennedy filled gone to Judge Robert H. Bork, Reagan's initial nominee, famous as a strict constructionist and as a vocal critic of the Supreme Court's precedents about a constitutional right to privacy. (945) Indeed, Bork was among the contributors to the well-known post-Romer First Things symposium, discussed in Part II, in which he called Romer "indecipherable" and attributed it to "the newly faddish approval of homosexual conduct among the elite classes from which the Justices come and to which most of them respond." (946)
The trajectory from 1996, the year of both Romer and DOMA, to 2013, when Windsor struck down Section 3 of DOMA, however, is more than a story about one fateful nomination battle. The changed landscape image is again apt. The Windsor majority avoided reaching the question of whether classifications based on sexual orientation warranted intermediate scrutiny, or even strict scrutiny. Such judicial avoidance might have reflected a pragmatic judgment that Romer provided the necessary template for invalidating Section 3 without the need to use Windsor as the occasion to announce a new rule about classifications based on sexual orientation. It could also be there were not sufficient votes for a majority of the Court to make such a move. It could be that at least a few justices had some reservations about the "political powerlessness" prong of the test of a suspect or quasi-suspect class in light of the seemingly rapid pace of societal and legal change about homosexuality. During oral argument in Windsor, for example, Paul Clement, arguing for BLAG, referred to the "sea change" on the issue of gay rights, brought about by the combination of the Court's precedents and persuasion in the democratic process. (947) He quipped: "Colorado, the State that brought you Amendment 2, has just recognized civil unions." (948) For that matter, Colorado, the state where voters approved Amendment 2, now includes "sexual orientation" as a protected category in its anti-discrimination law. (949) Skeptical of the need for heightened scrutiny, Chief Justice Roberts observed to Roberta Kaplan, counsel for Windsor: "As far as I can tell, political figures are falling over themselves to endorse your side of the case." (950) Even though Windsor's counsel and amici made strong arguments about analogies to other forms of discrimination and that political successes in some places did not negate the success in many states of popular initiatives barring marriage equality, (951) the Windsor majority did not go down the road of suspect classification. Instead, it focused on the evolution, within New York and a minority of states, to marriage equality and, employing Romer's important ideas about animus and laws targeting a particular class because of moral disapproval, set up a constitutionally impermissible contrast between such states attempting to confer the respect and dignity linked to marital status and DOMA's denial of that status. A striking example of the evolution within, and changed landscape, of a state from 1996 to 2013 comes from Hawaii itself. On November 13, 2013, Hawaii's governor signed into law a bill, passed by the state legislature, extending marriage rights to same-sex couples, commenting that, "Now all those who have been invisible will be visible to themselves and the world." (952)
What will the import of Windsor be for the next stage of the national "debate" over defining marriage? Notably, even the framing of such a debate suggests a change from the landscape twenty years ago. To the extent defending marriage featured as a rationale for Amendment 2, amici supporting Colorado urged the Court not to take sides in a debate over the moral and legal status of homosexuality. They did not credit the idea that there was a conscientious or robust debate over visions of marriage itself. To be sure, when some Windsor amici asserted that there is robust debate over marriage that the Court should not settle, they also voiced concern about the impact that resolving the debate in favor of a redefinition of marriage would have on society and on their own religious understandings of marriage. While the majority and dissenting opinions made little to no mention of this clash of rights argument about religious liberty, it seems likely that arguments about religious liberty and the need to accommodate it will feature prominently in the ongoing struggles for marriage equality, both in political and judicial fora. That is one reason that it is unfortunate that Justice Scalia, consistent with his Romer and Lawrence dissents, deployed the terms "bigots" and "enemies of the human race" to characterize the majority's supposed view of defenders of traditional marriage.
Post-Windsor developments have been so rapid and numerous that I can only mention a few here, in closing. Justice Scalia does have a point about the majority opinion providing a blueprint for future challenges to state laws; it is less clear whether his reading of what Justice Kennedy or even the majority of the Court would do if faced with such a challenge is accurate. On the blueprint point, news stories after Windsor reported that, although Justice Kennedy "took pains in his majority opinion to say the ruling applied only to legally married couples seeking benefits from the federal government," "judges and lawyers representing same-sex couples are already using Kennedy's language and reasoning in other cases about the right to marry." (953) In the lawsuit brought by several same-sex couples in Pennsylvania, for example, plaintiffs cite to Windsor in asserting both that Pennsylvania is excluding them from "a dignity and status of immense import" and that "tradition" and "moral disapproval of same-sex relationships of marriage" are insufficient bases for excluding same-sex couples from marriage. (954) Pennsylvania's Attorney General, Kathleen Kane, announced that she could not "ethically defend the constitutionality of Pennsylvania's version of DOMA," also adopted in 1996, triggering the Governor's office to announce it would defend the law. (955)
In New Jersey, a state superior court judge emphasized Justice Kennedy's disclaimer, "This opinion and its holding are confined to those lawful marriages," in ruling in favor of same-sex couples who asserted that, in light of Windsor, that New Jersey's remedy of civil unions instead of civil marriage was constitutionally inadequate under New Jersey's Equal Protection clause, since federal agencies, post-DOMA, were declaring they would give federal benefits to married same-sex couples but not to couples in civil unions or domestic partnerships. (956) Noting Justice Kennedy's disclaimer, the court concluded that New Jersey could not shift responsibility to the federal government to treat civil unions as marriages for purposes of federal benefits, when its own domestic relations law "assigns to same-sex couples a label distinct from marriage," which "now directly affects the availability of federal marriage benefits to those couples." (957) When the trial court denied the New Jersey Attorney General's motion to stay the trial court's order that same-sex couples be permitted to marry beginning on October 21, 2013, the New Jersey Supreme Court declined to lift the stay after determining that "the State has not shown a reasonable probability it will succeed on the merits," while "same-sex couples who cannot marry are not treated equally under the law today" and suffer "real" harm. (958) Subsequently, Governor Chris Christie, who initially strongly opposed the trial court's ruling, announced that the State would not appeal because "the Court has now spoken clearly as to their view of the New Jersey Constitution, and, therefore, same-sex marriage is the law." (959) Even so, Governor Christie, who had previously vetoed a bill allowing same-sex couples to marry, could not resist sounding the theme, familiar from the DOMA-era, that judicial activism thwarts democracy and letting the people decide, noting that he "strongly disagrees with the Court substituting its judgment for the constitutional process of the elected branches or a vote of the people," but that he would "do his constitutional duty and ensure his Administration enforces the law as dictated by the New Jersey Supreme Court." (960)
Post-Windsor, the demise of Section 3 will make labels matter even more, so that statutory schemes intended to remedy inequality by providing equal rights, benefits, and obligations "of" marriage but not the right "to" marry, as New Jersey initially did, (961) will not succeed if those couples are unequal for purposes of federal law.
(1.) 517 U.S. 620 (1996).
(2.) See 133 S. Ct. 2675, 2693 (2013) (stating that "[i]n determining whether a law is motived by an improper animus or purpose, "'[d]iscriminations of an unusual character'" especially require careful consideration" (quoting Romer, 517 U.S. at 633) and that "DOMA cannot survive under these principles.")
(4.) See id. at 2710, 2711 (Scalia, J., dissenting) (predicting that the Court's opinion will result in a "judicial distortion of our society's debate over marriage" and arguing that the Court should "have let the People decide"); id. at 2711 (Alito, J., dissenting) ("Our Nation is engaged in a heated debate about same-sex marriage"; he also states that the Constitution "does not dictate" the choice between understandings of marriage).
(5.) See Michael R. Gordon, New U.S. Policy Gives Equal Treatment to Same-Sex Spouses' Visa Applications, N.Y. TIMES, Aug. 3, 2013, at A8 (quoting Secretary of State John Kerry's announcement: "Effective immediately, when same-sex spouses apply for a visa, the Department of State will consider that application in the same manner that it will consider the application of opposite-sex spouses.")
(6.) 133 S. Ct. 2652 (2013).
(7.) 704 F. Supp. 2d 921, 994 (N.D. Cal. 2010), aff'd sub nom, Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012).
(8.) See Perry v. Brown, 671 F.3d 1052, 1096 (9th Cir. 2012) (holding that Proposition 8 violated the Equal Protection Clause, after comparing Proposition 8 to Amendment 2, which was invalidated in Romer).
(9.) Nanette Asimov, Same-Sex Couples Flock to SF for Weekend Weddings, S.F. CHRONICLE, June 29, 2013, http://www.sfgate.com/lgbt/article/Same-sex-couples-flock-to-SF-for-weekend-weddings-4638139.php.
(10.) Because the Court did not reach the merits in the Prop 8 appeal, this article focuses only on Romer's role in challenging DOMA.
(11.) H.R. Rep. No. 104-664, at 12, 15-16 (1996), available at http://www.gpo.gov/ fdsys/pkg/CRPT-104hrpt664/pdf/CRPT-104hrp664.pdf.
(12.) LISA KEEN & SUZANNE B. GOLDBERG, STRANGERS TO THE LAW: GAY PEOPLE ON TRIAL 196 (1998).
(13.) See infra Part III for discussion.
(14.) See H.R. Rep. No. 104-664, supra note 11, at 34 ("Romer v. Evans does not affect the Department's analysis (that H.R. 3396 is constitutionally sustainable)") (letter from Ann M. Harkins,
United States Department of Justice, to Hon. Charles T. Canady).
(15.) Id. at 32-33 ("A Short Note on Romer v. Evans") (citing Bowers v. Hardwick, 478 U.S. 186, 196 (1986)).
(16.) Evans v. Romer, 854 P.2d 1270 (Colo. 1993); Evans v. Romer, 882 P.2d 1335 (Colo. 1994).
(17.) 478 U.S. 186 (1986).
(18.) 539 U.S. 558 (2003).
(19.) Romer v. Evans, 517 U.S. 610, 635 (1996).
(20.) 413 U.S. 528 (1973).
(21.) 473 U.S. 432 (1985).
(22.) Lawrence, 539 U.S. at 578.
(23.) Id. at 564. 578.
(24.) Id. at 575.
(25.) Romer v. Evans, 517 U.S. 610, 636 (1996) (Scalia, J., dissenting).
(26.) Lawrence, 539 U.S. at 586 (Scalia, J., dissenting).
(27.) Carlos Ball includes Romer and Lawrence among several LGBT rights lawsuits that "worked in conjunction with political mobilization and social protests to remake our nation's political, social, and moral landscape." CARLOS A. BALL, FROM THE CLOSET TO THE COURTROOM: FIVE LGBT RIGHTS LAWSUITS THAT HAVE CHANGED OUR NATION 1 (2010).
(28.) United States v. Windsor, 133 S. Ct. 2675, 2692 (2013) (citing Romer, 517 U.S. at 633).
(29.) Id. at 2689, 2694.
(30.) Evans v. Romer, 854 P.2d 1270, 1276-82 (Colo. 1993); Evans v. Romer, 882 P.2d 1335, 1339-41 (Colo. 1994).
(31.) 473 U.S. 432 (1985).
(32.) 413 U.S. 528 (1973).
(33.) 699 F.3d 169 (2d Cir. 2012), cert. granted, 133 S. Ct. 2675 (2013).
(34.) Massachusetts v. United States Dep't of Health & Human Servs., 682 F.3d 1, 9 (1st Cir. 2012); Windsor v. United States, 833 F. Supp. 2d 394, 402 (S.D.N.Y. 2012).
(35.) KEEN & GOLDBERG, supra note 12, at ix.
(36.) Id; BALL, supra note 27, at 99-149.
(37.) Evans v. Romer, 854 P.2d 1270, 1272 (Colo. 1993).
(38.) Evans v. Romer, 882 P.2d 1335, 1338-39 (Colo. 1994) (citing COLO. CONST. art. II, [section] 30b).
(39.) LEGIS. COUNSEL OF THE COLO. GEN. ASSEMB., AN ANALYSIS OF 1992 BALLOT PROPOSALS, GEN. ASSEMB. 58-369, at 9 (1992).
(40.) Id. at 10.
(41.) Id. at 11.
(45.) Id. at 12 (emphasis added).
(48.) Evans v. Romer, 854 P.2d 1270, 1272 (Colo. 1993).
(49.) Petition for Writ of Certiorari, Romer v. Evans, 517 U.S. 620 (No. 94-1039, app. E, Transcript of Court Proceeding at E-5; Evans v. Romer, 854 P.2d 1270 (Colo. 1993) (No. 92 CV 7223) [hereinafter Transcript]).
(50.) Id. at E-17.
(51.) Id. (quoting Palmore v. Sidoti, 466 U.S. 429, 433 (1984)).
(52.) Id. at E-15 (comparing vote in Palmore with vote in Reitman v. Mulkey, 387 U.S. 369 (1967)).
(53.) Id. at E-17.
(54.) Id. at E-11.
(55.) Id. at E-18.
(56.) Id. at E-10.
(58.) Id. at E-10 to E-11.
(59.) Id. at E-10.
(60.) Evans v. Romer, 854 P.2d 1270, 1273, 1282 (Colo. 1993).
(61.) Id. at 1273.
(62.) Id. at 1274.
(63.) Id. at 1276.
(64.) Id. at 1277, 1282.
(65.) Id. at 1282.
(66.) Id. at 1284.
(68.) Id. (citing Reitman v. Mulkey, 387 U.S. 369, 373 (1967)).
(69.) Id. at 1284-85 (noting specific laws and orders that would be repealed).
(70.) Id. at 1285.
(75.) Id. at 1286.
(76.) 319 U.S. 624 (1943).
(77.) Romer, 854 P.2d at 1286 (quoting West Virginia Bd., 319 U.S. at 638).
(78.) Id. at 1273.
(79.) Id. at 1291 (Erickson, J., dissenting).
(80.) Id. at 1291-92.
(81.) Id. at 1287.
(82.) Id. at 1293.
(84.) Id. at 1294.
(85.) Id. at 1294-98, 1300 (quoting James v. Valtierra, 402 U.S. 137, 141 (1971)).
(86.) See BALI, supra note 27, at 122. For accounts of the trial, see id.; KEEN & GOLDBERG, supra note 12.
(87.) Petition for Writ of Certiorari, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039), app. C, Findings of Fact, Conclusions of Law and Judgment, at C-1 to C-20; Evans v. Romer, 854 P.2d 1270 (Colo. 1993).
(88.) Id. at C-2 to C-3, C-4 (quoting Evans I, 854 P. 2d at 1275 (citing Plyler v. Doe, 457 U.S. 202 (1982)).
(89.) Id. at C-4 (citing Defendants' Trial Brief pp. 3-4).
(90.) Id. at C-14.
(91.) Id. at C-4 to C-5 (quoting Defendants' Trial Brief, pp. 60-61).
(92.) Id. at C-5 (quoting Defendants' Trial Brief, pp. 60-61).
(93.) Id. at C-4 to C-5 (quoting Defendants' Trial Brief, pp. 60-61).
(94.) Id. at C-5.
(95.) Id. (quoting Anderson v. Celebreeze, 460 U.S. 780, 802, (1983)).
(96.) Id. at C-6.
(98.) Id. at C-7.
(99.) Id. at C-6.
(100.) Id. at C-6 to C-7 (describing testimony of Kevin Tebedo, paid executive director of CFV).
(101.) Id. at C-7.
(102.) Id. at C-7 (quoting Evans I, 854 P.2d. at 1272) (quoting the Colorado Constitution, Art. 2 [section] 2).
(103.) Id. at C-8 (quoting Evans I, 854 P.2d at 1286 (quoting West Virginia Bd. of Educ. v. Barnette, 319 US 624, 638 (1943))).
(104.) Id. (citing Evans I, 854 P.2d at 1286 (citing Lucas v. Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713, 736 (1964))).
(107.) Id. at C-9.
(111.) Id. at C-10 (citing Plyler v Doe, 457 U.S. 202 (1982)).
(116.) Id. at C-11.
(117.) Id. at C-10.
(118.) Id. at C-10 to C-11.
(119.) Id. at C-12.
(120.) Id. FRC has been an active opponent of marriage equality. See infra Part IV for discussion of its amicus brief filed in Windsor.
(124.) Id. at C-13.
(126.) Id. (citing Defendants' Trial Brief p. 69).
(129.) Id. (quoting Defendants' Trial Brief p. 74).
(130.) Id. (citing testimony by Dr. Carole Jenny, Denver's Children's Hospital).
(131.) Id. at C-13 to C-14.
(132.) Id. at C-14.
(133.) Id. at C-15.
(134.) Id. (citing High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990) (citing Bowen v. Giliard, 483 U.S. 587, 602-603 (1987)).
(135.) Id. at C-16 (citing numerous cases, including High Tech Gays and Ben-Shalom v. March, 881 F.2d 454 (7th Cir. 1989)).
(136.) Id. at C-17.
(138.) Id. at C-17 to C-18.
(139.) Id. at C-18.
(140.) Id. at C-18.
(144.) Id. at C-18 to C-19.
(145.) Id. at C-19.
(146.) Id. (discussing Dahl v. Sec'y of U.S. Navy, 830 F. Supp. 1319 (E.D. Cal. 1993) and Steffan v. Apsin, 8 F.3d 57 (D.C. Cir. 1993)).
(147.) Id. at C-20.
(148.) Evans v. Romer, 882 P.2d 1335, 1339-41 (Colo. 1994) (en banc).
(149.) Id. at 1341.
(150.) Id. at 1341 n.3.
(152.) Id. at 1341.
(153.) Id. at 1342.
(154.) Id. at 1342-43.
(155.) Id. at 1343.
(156.) Id. at 1343.
(157.) Id. (citing, for example, Moore v. City of E. Cleveland, 431 U.S. 494, 503-04 (1977) and Ginsberg v. New York, 390 U.S. 629, 639 (1968)).
(158.) Id. The claims resonate with the parental and religious liberty objections to marriage equality, discussed infra in Part II.D.
(159.) See JAMES E. FLEMING & LINDA C. MCCLAIN, ORDERED LIBERTY: RIGHTS, RESPONSIBILITIES, AND VIRTUES 116-45 (2013) (discussing congruence between the values promoted by government and those promoted by families in the context of education).
(160.) Evans, 882 P.2d at 1343.
(161.) Id. (citing Prince v. Massachusetts, 321 U.S. 158, 166 (1944) for the parental interest in inculcating values in children).
(162.) Id. (citing Bowen v. Roy, 476 U.S. 693, 699 (1986) as an example of such a holding).
(163.) Id. at 1344 (citing Block v. Meese, 793 F.2d 1303, 1312-14 (D.C. Cir. 1986)).
(167.) Id. (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 620 (1984)).
(170.) Id. (quoting Roberts, 468 U.S. at 620 (citing Loving v. Virginia, 388 U.S. 1, 12 (1967) and Ry. Mail Ass'n v. Corsi, 326 U.S. 88, 93-94 (1945)).
(171.) Id. at 1345.
(173.) Id. (internal citations omitted).
(174.) Id. (citing Reed v. Reed, 404 U.S. 71, 76-77 (1971) and other cases). Reed was the first case in the Court's modern sex discrimination jurisprudence.
(175.) Id. at 1345-46.
(176.) Id. at 1346.
(178.) Evans v. Romer, 882 P.2d 1335, 1346 (Colo. 1994) (en banc) (internal citations omitted)..
(180.) Id. at 1346 n. 11.
(182.) Id. at 1347 (citing Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) to support the view that "protection of morality constitutes a compelling governmental interest").
(183.) Id. (quoting Barnes, 501 U.S. at 582 (Souter, J., concurring)) (emphasis added by Colorado Supreme Court).
(184.) Id. (citing Plyler v. Doe, 437 U.S. 202, 217 (1982)).
(185.) Id. (noting that the divorce rate in Wisconsin declined after the state enacted the "oldest 'gay rights' law in the nation").
(189.) Id. (emphasis added).
(190.) Id. at 1348.
(198.) Id. at 1350.
(199.) Id. at 1349-50.
(200.) Id. at 1350.
(202.) Id. The court also distinguishes the case on which defendants rely, Gregory v. Ashcroft, 501 U.S. 452 (1991), because it "applies only to cases involving federal interference with the qualification of constitutional officers." Id.
(203.) Id. (citing Reitman v. Mulkey, 387 U.S. 369 (1967) and Lucas v. Colo. Gen. Assembly, 377 U.S. 713, 736-37 (1964)).
(204.) Id. at 1351 (Scott, J., concurring) (emphasis omitted).
(205.) Id. at 1351-1352 (Scott, J., concurring (citing Plessy v. Ferguson, 163 U.S. 537, 559 (1895))). See Part II. F.
(206.) Evans, 882 P.2d at 1356-57 (Erickson, J., dissenting).
(207.) Id. at 1356.
(208.) Id. at 1357-60 (citing Fed. Commc'ns Comm'n v. Beach Commc'ns, Inc., 508 U.S. 307, 307 (1993)).
(209.) Id. at 1361 (citing, inter alia, Heller v. Doe by Doe, 509 U.S. 312, 320 (1993) and Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)).
(210.) Id. at 1360 (citing Heller, 509 U.S at 320).
(211.) Id. at 1361 (citing City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 447 (1985)).
(212.) Id. (quoting Vance v. Bradley, 440 U.S. 93, 97 (1979)) (emphasis added) (footnote omitted).
(214.) Compare Brief for Petitioners, Romer v Evans at 19, 39, No. 94-1039, 1995 WL 17008429 (citing Vance, 440 U.S. at 97) with Brief for Respondents, Romer v Evans at 17, 36, No. 94-1039, 1995 WL 417786 (citing Vance, 440 U.S. at 97).
(215.) Romer, 882 P. 2d at 1362-66. (216.) Id. at 1363.
(217.) Id. (citing Emp't Div. v. Smith, 494 U.S. 872, 883 (1990)).
(219.) Id. at 1364.
(220.) Id. at 1364 n.6.
(222.) Id. at 1364.
(224.) Id. (citing James v. Valtierra, 402 U.S. 137, 141 (1971)).
(225.) Id. at 1364 n.8.
(226.) Id. at 1365.
(228.) Id. at 1365-66 (citing to testimony by Professor Joseph Broadus).
(229.) Id. at 1366 (citing testimony of Ignacio Rodridguez, former Civil Rights Commission Chairman).
(230.) There were nine amicus briefs filed in support of petitioners.
(231.) Brief for Colorado for Family Values as Amicus Curiae Supporting Petitioners at 1, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039) [hereinafter CFV Brief].
(233.) Id. at 2.
(234.) Brief for Concerned Women for America, Inc. as Amicus Curiae Supporting Petitioners at 15-16, Romer, 517 U.S. 620 (No. 94-1039) [hereinafter CWA Brief]. The quoted language in text is from the Supreme Court's famous case, Weber v. Aetna Casualty, 406 U.S. 164 (1972), which involved classifications based on illegitimacy. This is an odd choice since Weber ruled that the state could not pursue that goal of discouraging irresponsibility by punishing children who bore no responsibility for the circumstances of their birth!
(235.) Id. at 15 (citing Black v Meese, 793 F. 2d 1303, 1313 D.C. Cir. 1984), cert denied, 478 U.S. 1021 (1986) (Scalia, J.)).
(236.) Id. at 10-11.
(237.) Id. at 15.
(239.) Id. at 15-16 (quoting Finnis, professor of law and legal philosophy at Oxford University).
(240.) Id. at 11-12 (emphasis added) (quoting Barnes v. Glen Theatre, Inc., 501 U.S. 560, 575 (1991) (Scalia, J., concurring)).
(241.) Id. at 12 (citing P. DEVLIN, THE ENFORCEMENT OF MORALS 8, 13 (Oxford Univ. Press 1959)).
(242.) Id. at 12-13.
(243.) Id. at 12.
(244.) Id. at 13 (citing Bowers, 478 U.S. at 196). Georgia's law banned all forms of sodomy, as Justice Stevens pointed out in his dissent, but the Court construed the law and the moral disapproval rationale as if it specifically expressed condemnation of homosexual sodomy..
(245.) Id. at 14 (quoting Dronenburg v. Zech, 741 F.2d 1388, 1397 (D.C. Cir. 1984)).
(246.) Id. at 15-16.
(247.) Id. at 16. CWA cites to Richard F. Duncan, Who Wants to Stop the Church: Homosexual Rights, Public Policy, and Religious Freedom, 69 NOTRE DAME L. REV. 393, 405 n.41 (1994) (referring to a 1992 Gallup Poll and a 1970 Kinsey Institute Survey).
(248.) Id. at 17.
(250.) Id. at21.
(251.) Id. at 21-23.
(252.) Id. at 22-23 (citing Elden v. Sheldon, 758 P.2d 582 (Cal. 1988). Compare In re Marriage Cases, 183 P.3d 384 (2008) (citing Elden, 758 P.2d 582 to explain the significance of marriage as an institution). See also FLEMING & MCCLAIN, supra note 159, at 195 (discussing use of this language in In re Marriage cases).
(253.) Id. at 23 (citing Cooper v. French, 460 N.W.2d 2, 10 (Minn.1990)).
(254.) Id. at 23 (citing Cooper, 460 N.W.2d at 10).
(255.) Brief for Family Research Council as Amicus Curiae Supporting Petitioners at 9, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039) (quoting Bowers v. Hardwick, 478 U.S. 186, 194-95 (1986)) [hereinafter FRC Brief].
(257.) Id. at 10.
(259.) Id. at 10-11.
(260.) Id. at 12.
(261.) Id. at 13.
(262.) Id. at 17.
(264.) Id. (alteration in original) (quoting Evans v. Romer, 882 P.2d 1335, 1347 (Colo. 1994)) (internal quotation marks omitted).
(265.) Id. at 17-18.
(267.) Id. (emphasis added) (citing Dronenburg v. Zech, 741 F.2d 1388, 1397 (D.C. Cir. 1984)).
(268.) Id. at 18.
(269.) Id. at 19 (citing Robert H. Bork, The Case Against Political Judging, NAT'L, REV., Dec. 8, 1989, at 24).
(271.) Id. at 19 (citing Bowers v. Hardwick, 478 U.S.186, 197 (1986)) (Burger, C.J., concurring)).
(273.) Brief for Oregon Citizens Alliance et al. as Amici Curiae Supporting Petitioners at 10, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039) [hereinafter OCA Brief].
(274.) Id. at 11.
(276.) Brief for Christian Legal Society et al. as Amici Curiae Supporting Petitioners at 1-2, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039) [hereinafter CLS Brief]. Among the amici were the National Ass'n of Evangelicals, the Christian Life Commission of the Southern Baptist Convention, and the Lutheran Church-Missouri Synod. Id.
(277.) Id. at 2.
(278.) Id. at 2-3.
(279.) Id. at 3.
(281.) Id. at 21.
(282.) Id. at 8, 10, 11.
(283.) Id. at 12. CWA similarly argued that antidiscrimination laws including protections for sexual orientation violate the religious liberties of landlords and employers who may wish to deny housing and jobs to individuals based on sexual orientation and are entitled to do under the Free Exercise Clause. See CWA Brief, supra note 234, at 20.
(284.) CLS Brief, supra note 276, at 13.
(285.) Id. at 14.
(286.) 130 S. Ct. 2971 (2010).
(287.) CLS Brief, supra note 276, at 9 (discussing policy adopted by University of Michigan).
(288.) Id. at 10.
(289.) Id. at 3-4.
(290.) Id. at 4.
(291.) Id. at 25.
(293.) Id. (citing Duncan, supra note 247).
(294.) Id. at 26.
(295.) Id. at 4.
(296.) Brief for American Center for Law & Justice Family Life Project as Amicus Curiae Supporting Petitioners at 1, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039) [hereinafter ACLJ Brief].
(297.) Id. at 2.
(300.) Id. at 15.
(301.) See CWA Brief, supra note 234, at 20.
(304.) Id. at 21.
(306.) CLS Brief, supra note 276, at 12.
(307.) ACLJ Brief, supra note 296, at 12 (quoting Duncan, supra note 247, at 405).
(308.) See id. at 15-16.
(309.) CFV Brief, supra note 231, at 16.
(310.) See CWA Brief, supra note 234, at 16.
(312.) Id. at 2-3.
(313.) Brief of Equal Rights, Not Special Rights, Inc. as Amicus Curiae in Support of Petitioners, at 4, Romer v. Evans, 517 U.S. 620 (1996) (No.94-1039) [hereinafter Equal Rights Brief]. This group described itself as an "Ohio-based non-profit educational organization devoted to pro-family issues" and explained that its predecessor organization had successfully sponsored a charter amendment to repeal a local human rights ordinance prohibiting various forms of discrimination on the basis of sexual orientation and barring future protection. Id. at 1.
(314.) Id. at 4.
(315.) CFV Brief, supra note 231, at 21. See also Equal Rights Brief, supra note 313, at 9 (asserting that Amendment 2 was constitutionally permissible because there is "nothing in the federal Constitution that prohibits the people from resolving important public policy issues for themselves or that requires them to delegate such important decisions to their employee representatives"). The contemporary analogue to this argument about the power of the people through the initiative process pertains to Proposition 8, not discussed in this article since the Court did not reach the merits in that case.
(316.) CFV Brief, supra note 231, at 5.
(317.) Id. at 11.
(318.) Id. at 4.
(319.) Id. at 16.
(320.) Id. at 12.
(321.) Id. (citing THOMAS COOLEY, CONSTITUTIONAL LIMITATIONS 33 (1987)).
(322.) FRC Brief, supra note 255, at 10-12.
(323.) Id. at 15.
(324.) Brief of Amici Curiae for Alabama et al. in Support of Petitioners at 3, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039) [hereinafter Alabama Brief].
(325.) Id. at 5. See also OCA Brief, supra note 273, at 4 (asserting that the Colorado Supreme Court's framework of protecting the rights of "independently identifiable groups" expands equal protection law too far).
(326.) Alabama Brief, supra note 324, at 10.
(327.) Id. at18.
(329.) Id. at 19.
(330.) Id. Presumably, that constitutional freedom is to be free from charges of discrimination if they discriminate against homosexuals.
(331.) Equal Rights Brief, supra note 313, at 13-14.
(332.) Id. at 13.
(333.) See, e.g., CWA Brief, supra note 234, at 2; Equal Rights Brief, supra note 313, at 6; OCA Brief, supra note 273, at 4. One amicus, The Pacific Legal Foundation (PLF), argued against group rights, claiming that fundamental rights are always individual rights and that American government recognizes categories of people based on merit, not immutable characteristics such as race and sexual orientation. It contended that affirmative action is problematic because "group rights permanently pit each group against the others in encounters that are bound to be at least sporadically violent." See Brief of Pacific Legal Foundation as Amicus Curiae in Support of Petitioners at 23, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039) [hereinafter PLF Brief].
(334.) ACLJ Brief, supra note 296, at 10-11.
(336.) CWA Brief, supra note 234, at 2.
(337.) CFV Brief, supra note 231, at 1.
(339.) ACLJ Brief, supra note 296, at 11.
(340.) Id. at 11-12 (citing Watkins v. United States, 847 F.2d 1329, 1361 n.19 (9th Cir. 1988)). (Reinhardt, J., dissenting), vacated, 875 F.2d 669 (9th Cir. 1989)).
(341.) See CFV Brief, supra note 231, at 23.
(342.) Alabama Brief, supra note 324, at 4.
(343.) Id. at 12, 14.
(344.) See generally Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039).
(345.) Brief of the American Psychological Ass'n et al. as Amici Curiae in Support of Respondents, at 7-8, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039) [hereinafter APA Brief].
(346.) Id. at 18-19.
(347.) Id. at 27.
(348.) Id. at 10.
(349.) Id. at 14.
(350.) Id. at 15.
(352.) Id. at 20.
(353.) Id. at 2.
(354.) Id. at 21.
(355.) Id. at 23.
(357.) Id. at 17.
(359.) Id. at 18.
(360.) Id. at 24 (internal citations omitted).
(361.) See Brief of the Human Rights Campaign Fund et al. as Amici Curiae in Support of Respondents, at 30, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039) [hereinafter HRCF Brief].
(362.) Id. at 8 (quoting Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982).
(363.) Id. at 7 (citing City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985)).
(364.) Id. at 7-8 (quoting Cleburne, 473 U.S. at 440).
(365.) Id. at 14.
(366.) Id. at 18.
(368.) Id. at 15.
(369.) Brief for National Bar Ass'n as Amicus Curiae Supporting Respondents at 5, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039) ]hereinafter NBA Brief].
(370.) Id. at 7.
(371.) Id. at 6.
(373.) Id. (internal citations omitted)
(374.) Id. at 7.
(375.) Id. at 6.
(376.) Id. at 7.
(379.) Brief of the American Bar Ass'n as Amicus Curiae in Support of Respondents at 3, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039) [hereinafter ABA Brief].
(380.) Id. at 16.
(381.) Id. at 17.
(383.) See APA Brief, supra note 345, at 24; Brief of National Education Ass'n et al. as Amici Curiae in Support of Respondents, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039) [hereinafter NEA Brief].
(384.) ABA Brief, supra note 379, at 17-18.
(385.) Id. at 18.
(386.) Id. at 15.
(387.) Id. at 16 (citing Def. Trial Brief at pp. 73, 75). The ABA observed that that rationale "has apparently has been abandoned by the state." Id. at 15.
(388.) Id. at 16 (quoting Petition for Writ of Certiorari, at C-13 to -14, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039)).
(389.) Id. at 15.
(390.) Id. at 15-16 (arguing that proponents of the measure "repeatedly and spuriously represented" that homosexuality was bound up with pedophilia).
(391.) NBA Brief, supra note 369, at 7.
(392.) ABA Brief, supra note 379, at 23 (quoting Brief for Petitioner at 45-46, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039)).
(393.) Id. at 23-24.
(394.) Id. (quoting Petition for Writ of Certiorari at B-15, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039)).
(395.) Id. at 24 (quoting Petition for Writ of Certiorari at B-15, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039).
(396.) Id. (quoting Brief for Petitioners at 43 n.65, Evans v. Romer, 882 P.2d 1335 (Colo. 1994) (No. 94-1039).
(397.) See ABA Brief, supra note 379, at 21; HRCF Brief, supra note 361, at 28-30.
(398.) ABA Brief, supra note 379, at 16-17; HRCF Brief, supra note 361, at 21.
(399.) Brief of Amicus Curiae of James E. Andrews as Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.) in Support of Respondents at 1, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039) [hereinafter Presbyterian Brief].
(400.) Id. at 2.
(401.) Id. at 4.
(402.) Brief Amicus Curiae of the American Friends Service Committee et al. in Support of Respondents at 1, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039) [hereinafter AFSC Brief].
(404.) Id. at 19.
(405.) AFSC Brief, supra note 402, at 25; see also infra Part II.E.5.
(406.) AFSC Brief, supra note 402, at 21.
(407.) Id. at 10.
(408.) Brief for Amici Curiae of Affirmation: United Methodists for Gay, Lesbian and Bisexual Concerns et al. as Amici Curiae in Support of Respondents at 2, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039) [hereinafter United Methodists Brief].
(409.) Id. at 8 (quoting Griswold v. Connecticut, 381 U.S. 479, 486 (1965)).
(410.) Id. at 11.
(411.) See infra Part II * D-2 for discussion of CLS Brief.
(412.) ABA Brief, supra note 379, at 22.
(413.) Id. at 23.
(415.) Id. (quoting Runyon v. McCrary, 427 U.S. 160, 176 (1976)).
(416.) Id. at 18 (quoting Petition for Writ of Certiorari at 13, Romer v. Evans at 13, 517 U.S. 620 (1996) (No. 94-1039) (emphasis in ABA Brief)).
(417.) Id. (quoting Petition for Writ of Certiorari at 47, Romer v. Evans, 517 U.S. 620 (1996) (No. 941039) (emphasis in ABA Brief)).
(418.) Id. at 19 (citing Palmore v. Sidoti, 466 U.S. 429, 433 (1984)).
(419.) Id. at18.
(420.) NBA Brief, supra note 369, at 8 (citing Palmore).
(421.) ABA Brief, supra note 379, at 19 (internal citations omitted).
(422.) Id. (citations omitted).
(423.) See discussion infra Part III.
(424.) Brief for City of Aspen and City Council of Aspen as Amici Curiae in Support of Respondents at 15, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039) [hereinafter Aspen Brief].
(425.) Brief of the Cities of Atlanta, Baltimore, et al. as Amici Curiae in Support of Respondents at 9, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039) [hereinafter Atlanta Brief].
(426.) See id. at 10 ("Amendment 2 seeks to compel governments to give effect to the biases of their own employees. Where such employees have been vested with significant discretion, their authority to employ bias arbitrarily is particularly pernicious." (emphasis in Atlanta Brief)).
(427.) Brief of the Colorado Bar Ass'n et al. as Amici Curiae in Support of Respondents at 8, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039) (emphasis in original) ]hereinafter CBA Brief].
(429.) Brief of Amici Curiae States of Oregon et al. in Support of Respondents at 4, 5, 14, Romer v. Evans, 517 U.S. 620 (1996), (No. 94-1039) [hereinafter Oregon States Brief].
(430.) Id. at 28.
(431.) Id. at 29 (citing to City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985)).
(432.) Aspen Brief, supra note 424, at 15-18.
(433.) Atlanta Brief, supra note 425, at 4.
(434.) CBA Brief, supra note 427, at 14 (citations omitted).
(435.) Brief of the Gay & Lesbian Lawyers of Philadelphia, as Amicus Curiae in Support of Respondents at 13-16, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039).
(436.) Id. at 14.
(437.) United Methodists Brief, supra note 408, at 10-12.
(438.) Id. at 11 (citing Scott v. Sandford, 60 U.S. 393, 422 (1856)).
(439.) Brief for the NAACP Legal Defense & Educational Fund, Inc. et al. as Amici Curiae in Support of Respondents at 15, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039).
(440.) Brief for Amicie Curiae Asian American Legal Defense & Education Fund et al. in Support of Respondents, Romer v. Evans, at 10, 517 U.S. 620 (1996) (No. 94-1039) [hereinafter Asian American Brief] ("That this case does not involve racial discrimination says nothing about whether it involves discrimination in the political process.").
(441.) Id. at 25.
(442.) Id. at 26.
(443.) Id. at 26-27.
(444.) Brief of the American Ass'n on Mental Retardation et al. in Support of Respondents at 16, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039).
(445.) Id. at 17 (arguing that, despite the holding in Bowers v. Hardwick refusing to invalidate state anti-sodomy laws, classifications based on sexual orientation require strict scrutiny because homosexuals are not defined by their sexual behavior).
(447.) See id. at 4 ("Petitioners" conceptualization of the tiers as the entirety of equal protection law, rather than as a tool, would also mean that the protection of the equal protection clause will increasingly be reserved for those who need it least.").
(448.) Oregon States Brief, supra note 429, at 19.
(449.) Id. at 19-20 (internal citations omitted).
(450.) Id. at 14-15.
(451.) See id. at 8-16 (noting that "Amendment 2 is invalid because it lacks a legitimate state objective.").
(452.) See id. at 29 (noting that "when a law focuses on unpopular personal traits, there is a point at which the law's loose fit to its purported objectives provides no real confidence that is rests on anything other than prejudice or private bias.").
(453.) BALL, supra note 27, at 131.
(454.) Brief of Laurence H. Tribe et al. as Amici Curiae in Support of Respondents at 3, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039) (emphasis in original).
(455.) Id. at 10-11 (emphasis in original) (citations omitted).
(456.) Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (dissenting opinion), overruled by, Brown v. Bd. of Educ., 347 U.S. 483 (1954)).
(457.) Id. at 635.
(458.) Id. at 625-26 ("We ... now affirm the judgment, but on a rationale different from that adopted by the State Supreme Court.").
(459.) Id. at 635.
(460.) Id. at 633.
(461.) Id. (quoting Sweatt v. Painter, 339 U.S. 629, 635 (1950)).
(463.) Id. at 631.
(464.) See Windsor v. United States, 699 F.3d 169, 180 (2d Cir. 2012) (quoting counsel for BLAG's witty characterization).
(465.) Romer, 517 U.S. at 631.
(466.) Id at 632.
(468.) Id. at633.
(469.) Id. at 632 (citations omitted).
(470.) Id. at 632-33 (emphasis added) (citing U.S.R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 181 (Stevens, J., concurring)).
(471.) Id. at 633.
(473.) Id. (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)).
(475.) Id. at 634.
(476.) Id. (citing Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973)).
(477.) Id. at 636. (citing Civil Rights Cases, 109 U.S. 3, 24 (1883)).
(478.) Id. (Scalia, J., dissenting).
(479.) Id. (citing to Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003)).
(480.) Id. at 641.
(481.) Id. at 644.
(482.) Id. at 645, 647.
(483.) Id. at 646.
(484.) Id. at 653.
(485.) Id. at 652.
(486.) KEEN AND GOLDBERG, supra note 12, at 235.
(487.) Id. at 226-227, 238.
(488.) Charles W. Colson, Kingdoms in Conflict, FIRST THINGS (Nov. 1996), available at http://www.firstthings.com/article/2007/11/006-the-end-of-democracy-kingdoms-in-conflict-34.
(490.) Id. Colson later was a co-author with Robert George (also a participant in the First Things symposium) of "The Manhattan Declaration: A Call of Christian Conscience" (2009), which sounded the alarm about redefining marriage and filed an amicus brief in Windsor, discussed infra in Part III*E. See Manhattan Declaration: A Call of Christian Conscience, MANHATTAN DECLARATION (Nov. 20, 2009), http://manhattandeclaration.org/man_dec_resources/ManhattanDeclaration full text.pdf.
(491.) Hadley Arkes, A Culture Corrupted, FIRST THINGS (Nov. 1996) available at http://www.firstthings.com/article/2007/11/005-the-end-of-democracy-a-culture-corrupted-21.
(494.) KEEN AND GOLDBERG, supra note 12, at 239 (arguing that, in doing so, Clinton "disregarded the [Romer] decision's clear message").
(495.) Peter Baker, President Quietly Signs Law Aimed at Gay Marriages, WASH. POST, Sept. 22, 1996, at A21; see also Peter Baker, Now in Defense of Gay Marriage, Bill Clinton, N.Y. TIMES, Mar. 26, 2013, at A1, available at http://www.nytimes.com/2013/03/26/u /politics/bill-clintons-decision-and-regreton-defense-of-marriage- act.html?pagewanted=all&_r=0 (making the point that President Clinton
avoided publicity at the signing of DOMA).
(496.) For an informative look back at the history of DOMA, see Chris Geidner, Marriage Wars, METRO WEEKLY, July 14, 2011, available at http://www.metroweekly.com/news/?ak=6427 [hereinafter Marriage Wars].
(497.) Chris Geidner, Double Defeat, METRO WEEKLY, Sept. 15, 2011, available at http://www.metroweekly.com/news/?ak=6567.
(498.) H.R. REP. NO. 104-664, supra note 11, at 2.
(499.) Defense of Marriage Act of 1996 [section] 2, 28 U.S.C. [section] 1738C (2006).
(500.) Id. at [section] 3.
(501.) See Windsor v. United States, 133 S. Ct. 2675, 2683 (2013) ("The enactment's comprehensive definition of marriage for purposes of all federal statutes and other regulations or directives covered by its terms ... does control over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law.") (citing U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-04-353R, DEFENSE OF MARRIAGE ACT: UPDATE TO PRIOR REPORT 1 (2004), available at http://www.gao.gov/assets/100/92442.html.). The House Report accompanying DOMA used slightly different numbers: "The word 'marriage' appears in more than 800 sections of federal statutes and regulations, and the word 'spouse" appears more than 3,100 times." H.R. REP. No. 104-664, supra note 11, at 10.
(502.) H.R. REP. No. 104-664, supra note 11, at 2.
(503.) Id. at 2-3, 6.
(504.) Id. at 4 (citing Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)).
(505.) Id. at 17.
(506.) Id. at 10 n.32.
(507.) Id. at 10 n.33.
(508.) Marriage Wars, supra note 496.
(509.) Chris Geidner, Becoming Law, METRO WEEKLY, Sept. 29, 2011, available at http://metroweekly.com/feature/?ak=6613.
(510.) See Dissenting Views on H.R. 3396, H.R. REP. No. 104-664, supra note 11, at 36-37.
(512.) See id. at 27-28 (referring to Senator Edward Kennedy introducing Professor Laurence Tribe's letter into the Congressional Record, at 142 Cong. Rec. S5931-33 (June 6,1996)).
(513.) See id. at 33-34 (including letter from DOJ Office of Legislative Affairs to Hon. Henry J. Hyde).
(514.) Id. at 32 ("A Short Note on Romer v. Evans").
(517.) Id. at 32-33.
(518.) Id. at 33.
(521.) Baehr v. Miike, 910 P.2d 112 (Haw. 1996). For an informative account of the trial, see BALL, supra note 27, at 151-98.
(522.) HAW. CONST. art. 1, [section] 23 (approving HB 117 (1997)). See also BALL, supra note 27, at 178-85 (describing political context of Hawaiian ballot initiative).
(523.) See Reciprocal Beneficiaries, HAW. REV. STAT. [section] 572C (2011). For a discussion of the problems with this strategy of "partial equality," see LINDA C. MCCLAIN, THE PLACE OF FAMILIES: FOSTERING CAPACITY, EQUALITY, AND RESPONSIBILITY 184-87 (2006).
(524.) 798 N.E.2d 941 (Mass. 2003).
(525.) Id. at 958-59. I elaborate on the role of Lawrence in Goodridge in MCCLAIN, supra note 523, at 162-70; and FLEMING & MCCLAIN, supra note 159, at 184-90.
(526.) For a helpful overview of these legal developments in the District of Columbia and the fourteen states that now permit same-sex couples to marry, see www.FreedomtoMarry.org/states.
(527.) See Windsor v. United States, 833 F. Supp. 2d 394, 398-400 (S.D.N.Y. 2012), aff'd, 699 F.3d 169 (2d Cir. 2012) (concluding that New York, "through its executive agencies and appellate courts, uniformly recognized Windsor's [out of state] marriage" in 2009, when she paid federal estate taxes).
(528.) See, e.g., Massachusetts v. U.S. Dept. of Health and Human Servs., 682 F.3d 1, 6-7, 15-16 (1st Cir. 2012) (detailing lawsuits challenging Section 3 brought by Massachusetts couples and by the Commonwealth of Massachusetts; affirming lower court ruling finding Section 3 unconstitutional).
(529.) Letter from Attorney General Eric Holder to Hon. John A. Boehner, Speaker, U.S. House of Representatives (Feb. 23, 2011) [hereinafter Letter from Holder]. All quotes in text from Holder's analysis of DOMA are from this letter, unless otherwise indicated.
(530.) Id. at 2.
(531.) Id. at 6.
(532.) This is a bit of a misnomer since the two Democrats in this five-member group have declined to participate in defending DOMA.
(533.) Letter from Holder, supra note 529, at 2 (quoting Bowen v. Gilliard, 438 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 441-42 (1985)).
(535.) Id. at 2.
(536.) Id. at 3.
(537.) Id. at 4.
(538.) Id. at 3-4 n.5 (quoting H.R. REP. NO. 104-664, at 13).
(540.) Id. at 4-5.
(541.) Id. at 5.
(543.) 833 F. Supp. 2d 394, 397 (S.D.N.Y. 2012).
(544.) Id. They registered as domestic partners in New York City in 1993, "as soon as that option became available." Id.
(546.) 855 N.E.2d 1 (2006). The Court of Appeals, however, noted that the legislature could, if it chose to do so, enact a marriage equality law.
(547.) Windsor, 833 F. Supp. 2d at 398.
(549.) Id. at 397.
(552.) Id. at 401.
(554.) Id. at 406.
(555.) 682 F. 3d 1 (1st Cir. 2012).
(556.) Id. at 11-12.
(557.) Id. at 10.
(558.) Windsor, 833 F. Supp. 2d at 402 (citing Lawrence v. Texas, 539 U.S. 558, 579-580 (2003) (O'Connor, J., concurring)).
(559.) Id. (citing Romer, 517 U.S. at 632).
(560.) Id. at 402.
(561.) Id. at 403 (citing Heller v. Doe, 509 U.S. 312, 320-21 (1993)).
(562.) Id. at 403-06.
(563.) Id. at 403.
(564.) Id. at 404.
(565.) Id. at 404.
(566.) Id. at 405 (citing Romer, 517 U.S. at 635).
(569.) Windsor, 833 F. Supp. 2d at 405. The district court cites a similar conclusion reached by the federal district court in the First Circuit DOMA challenge. Massachusetts v. U.S. Dept. of Health and Human Servs., 698 F. Supp. 2d 234, 249-250 (D. Mass. 2010)).
(570.) Windsor, 833 F. Supp. 2d at 406 (quoting Massachusetts, 682 F. 3d at 16).
(572.) Id. at 403 n. 3.
(574.) Id. (quoting Massachusetts, 682 F. 3d at 16).
(575.) Lawrence v. Texas, 539 U.S. 558, 583, 585 (2003)) (O'Connor, J., concurring), cited at Windsor, 833 F. Supp. 2d at 403.
(576.) Windsor, 833 F. Supp. 2d at 403 n. 4 (citing Heller v. Doe, 509 U.S. 312, 320 (1993)).
(577.) Id. (citing City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 446 (1985)).
(578.) Petition for Writ of Certiorari before Judgment, Windsor v. United States, No. 12-63 at 4, 12.
(579.) See Brief in Opposition (filed by BLAG), Windsor v. U.S., No. 12-63, at 1 (arguing that the Court should grant certiorari in the First Circuit case because of questions of Windsor's standing and the absence of a Second Circuit ruling).
(580.) Petition for a Writ of Certiorari before Judgment, Windsor v. U.S., at 10. The U.S. argued that the Court should "hold this petition" pending its consideration of the petition in DHHS v. Massachusetts and the petition for certiorari before judgment in Office of Pers. Mgmt. v. Golinsky, No. 12-16). It asserted that Windsor's petition raised threshold questions that were potential obstacles to her petition: she sought cert before judgment and BLAG questioned whether New York law recognized her Canadian marriage.
(581.) Windsor v. United States, 699 F.3d 169, 176 (2d Cir. 2012). The judge was Chief Judge Dennis Jacobs.
(582.) Id. at 181.
(583.) Id at 179.
(584.) Id. at 178-79 (discussing Baker v. Nelson, 409 U.S. 810 (1972)).
(585.) Id. (distinguishing Baker, 409 U.S. 810).
(586.) Id. at 178.
(587.) Id. at 180-81. The Second Circuit noted that BLAG's counsel had "wittily" referred to this test as "rational basis plus or intermediate scrutiny minus." Id. at 180 (quoting Oral Arg. Tr. 16:10-12).
(588.) Id. at 181 n.3 (comparing Lawrence, 539 U.S. at 580 (O'Connor, J, concurring) with, among other cases, Cleburne, 473 U.S. 432, 459-460 (1985) (Marshall, J., concurring in part and dissenting in part).
(589.) Id. at 180 (citing Romer v. Evans, 517 U.S. 620, 634-35 (1996)).
(590.) Id. (quoting Schweiker v. Vison, 450 U.S. 221, 234 (1981) (quoting Mathews v. Lucas, 427 U.S. 495, 510 (1976)).
(593.) Id. at 181.
(594.) Id. at 185.
(595.) Id. (citing United States v. Va., 518 U.S. 515, 533 (1996) (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)).
(596.) Id. at 181-82.
(597.) Id. (citing Bowers v. Hardwick, 478 U.S. 186, 196 (1986)).
(598.) Id. at 182.
(599.) Frontiero v. Richardson, 411 U.S. 677 (1973).
(600.) Windsor, 699 F. 3d at 182 (citing Frontiero, 411 U.S. at 686; also citing City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440-442 (1985)).
(602.) Id. at 182-83.
(603.) Id. at 183.
(604.) Id. (citing Frontiero, 411 U.S. at 686).
(607.) Id. (emphasis in opinion) (quoting Bowen v. Gilliard, 483 U.S. 587, 602 (1987)).
(609.) Id. at 184.
(613.) Id. at 185.
(614.) See supra Part II.B.3.
(615.) Windsor, 699 F. 3d at 185.
(616.) Id. at 185-86.
(617.) Id. at 186 (referring to Brief on the Merits of Amici Curiae Family Law Professors & the American Academy of Matrimonial Lawyers in Support of Respondent Edith Schlain Windsor at 12-13, Windsor, 133 S. Ct. 2675 (No. 12-307) [hereinafter Family Law Brief]).
(618.) Id. (quoting Romer v. Evans, 517 U.S. 620, 633 (1996)). This language will feature in Justice Kennedy's majority opinion in Windsor. See Part IV.F.
(620.) Id. at 187 (quoting Heller v. Doe by Doe, 509 U.S. 312, 326 (1993)).
(623.) Id. (referencing Windsor v. U.S., 833 F.Supp.2d 394, 403 (S.D.N.Y. 2012)).
(624.) Id. at 188.
(626.) Id. (citing Massachusetts v. U.S. Dep't of Health and Human Servs., 682 F.3d 1, 14-15 (1st Cir. 2012); Windsor, 833 F.Supp.2d at 404-05; Pedersen v. Office of Pers. Mngmt., 881 F.Supp.2d 294, 2012 WL 3113883, at *40-43 (D. Conn. July 31, 2012)(emphasis added)).
(627.) Id. at 188-211 (Straub, J., dissenting).
(628.) Id. at 189, 199 (citing Lawrence v. Texas, 539 U.S. 558, 585 (2003) (O'Connor, J., concurring); id. at 197-208 (concluding several rationales survive rational basis review).
(629.) Id. at 209-10 (critiquing Massachusetts, 682 F.3d at 9).
(630.) Id. at 209-10. I do not elaborate here on the dissent's lengthy treatment of Baker v. Nelson, which appears at Windsor, 699 F. 3d at 192-95, 209-11. By contrast, the First Circuit concluded that Baker prevented it from adopting intermediate scrutiny, but not the more searching form of rational basis review. Massachusetts, 682 F.3d at 9-10.
(631.) Windsor, 699 F. 3d at 189, 192-93.
(632.) Id. at 197 (citing Romer v. Evans, 517 U.S. 620, 633-34 (1996)).
(633.) Id. (citing U.S. Dep't of Agriculture v. Moreno, 413 U.S. 528, 534 (1973)).
(634.) Id. (citing Bd. of Trs. of Univ. Ala. v. Garrett, 531 U.S. 356, 367 (2001)).
(635.) Id. at 197, 208.
(636.) Id. at 199 (citing Lawrence v. Texas, 539 U.S. 558, 585 (2003)(O'Connor., J., concurring)).
(637.) Id. (citing, inter alia., Massachusetts v. U.S. Dep't of Health and Human Servs., 682 F.3d 1, 7 (striking down Section 3 but observing "we do not rely upon the charge that DOMA's hidden but dominant purpose was hostility to homosexuality")).
(638.) Id. at 200.
(639.) Id. (citing Hernandez v. Robles, 821 N.Y.S.2d 770 (N.Y. 2006) (plurality opinion)). An influential version of the argument that marriage is the institution that brings order to certain features of heterosexual sex and procreation that could otherwise lead to a chaotic society is Justice Cordy's dissent in Goodridge v. Dep't. of Pub. Health, 798 N.E.2d 941 (2003).
(640.) Id. at 201 (also citing Brief Addressing the Merits of the State of Indiana and 16 other States as Amici Curiae in Support of Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives at 24, 35, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) [hereinafter Indiana Brief]).
(641.) Id. at 201-02.
(642.) Id. at 202.
(643.) Id. at 204.
(644.) Id. at 205-07.
(645.) Id. at 208.
(646.) Id. at 211.
(648.) Supplemental Brief of Petitioner United States at 7, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307).
(649.) Supplemental Brief of Respondent Windsor, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307).
(650.) Supplemental Brief for Respondent Bipartisan Legal Advisory Group of the U.S. House of Representatives at 2, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307).
(651.) See Supreme Court Information, United States v. Windsor, No. 12-307, available at www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-307.htm. In Hollingsworth, it requested briefing on whether the petitioners (proponents of Proposition 8) had standing under Article III. See Proceedings and Orders, http://www.scotusblog.com/casefiles/cases/hollingsworth-v-perry/.
(652.) This count is based on reviewing the docket. See Preview of the United States Supreme Court Cases, U.S. v. Edith Schlain Windsor, Docket No. 12-307. www.americanbar.org/publications/preview_home/12-307.html; Supreme Court Information, U.S. v. Windsor, www.supremecourt.gov/Search.aspx?Flename=/docketfiles/12-307.htm. In addition, the Court appointed law professor Vicki Jackson as amicus curiae "to argue the position that the Court lacks jurisdiction to hear the dispute." United States v. Windsor, 133 S. Ct. 2675, 2684 (2013). The author of this article joined an amicus brief filed in support of Windsor, Brief of Amici Curiae Family and Child Welfare Law Professors and in Support of Respondents, as well as amicus briefs
filed by this group in lower court proceedings in the DOMA litigations.
(653.) See Susan R. Estrich and Kathleen M. Sullivan, Abortion Politics: Writing for an Audience of One, 138 U. PA. L. REV. 119, 122-23 (1989) (observing that the battle over abortion rights in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), made clear that "eight men may read our briefs, but the real audience is one woman": Justice Sandra Day O'Connor).
(654.) By contrast to the briefing in Romer, there was considerably less argument in Windsor about freedom of association. Such argument generally appeared in arguments that contended that same-sex marriage would threaten religious liberty. See, e.g., Brief for the Becket Fund for Religious Liberty as Amicus Curiae Supporting Hollingsworth and the Bipartisan Legal Advisory Group (On the Merits) at 29, United States v. Windsor, 133. S. Ct. 2675 (2013) (No. 12-307) [hereinafter Becket Brief] (asserting that conflicts resulting from redefining marriage would "implicate the fundamental First Amendment rights of religious institutions, including the rights to freedom of religion and freedom of association"); Brief for the American Jewish Committee as Amicus Curiae Supporting Individual Respondents (On the Merits) at 26, United States v. Windsor, 133. S. Ct. 2675 (2013) (No. 12-307) [hereinafter AJC brief] (stating that civil recognition of same-sex marriage may pose problems for individuals who do not want to associate with same-sex couples).
(655.) Brief for the Family Research Council as Amicus Curiae Supporting Respondent Bipartisan Legal Advisory Group (Addressing the Merits and Supporting Reversal) at 4, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) [hereinafter FRC Brief] (citing Romer v. Evans, 517 U.S. 1 (1992)).
(657.) Brief for Catholic Answers, Christian Legal Society, and Catholic Vote Education as Amici Curiae Supporting Respondent Bipartisan Legal Advisory Group (Addressing the Merits and Supporting Reversal) at 22, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) [hereinafter Catholic Answers Brief].
(658.) FRC Brief, supra note 655, at 19 (citations omitted).
(659.) Id. at 4 (citing Order of June 6, 2012, at 14-15 (quoting City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 442 (1985))).
(660.) Id. at 31 (citing Equality Foundation of Greater Cincinnati Inc., v. Cincinnati, 128 F.3d 289, 297 n. 8 (6th Cir. 1997) (citing Romer v. Evans, 517 U.S. 629, 632 (1996))).
(661.) Id. at 31-32.
(662.) Id. at 31-32 n. 2.
(663.) Brief for Liberty Counsel as Amicus Curiae Supporting Respondent Bipartisan Legal Advisory Group at 26, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) [hereinafter Liberty Counsel Brief].
(664.) Brief of United States Senators Orrin G. Hatch, Saxby Chambliss, Dan Coats, Thad Cochran, Mike Crapo, Charles Grassley, Lindsey Graham, Mitch McConnell, Richard Shelby and Roger Wicker as Amici Curiae Supporting Respondent Bipartisan Legal Advisory Group of the U.S. House of Representatives at 28, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307)[hereinafter U.S. Senators Brief].
(666.) Liberty Counsel Brief, supra note 663, at 36.
(667.) Brief for Eagle Forum Education and Legal Defense Fund Inc. as Amicus Curiae Supporting Respondent Bipartisan Legal Advisory Group of the U.S. House of Representatives (On the Merits) at 12, 14, United States v. Windsor,133 S. Ct. 2675 (2013) (No. 12-307) [hereinafter Eagle Forum Brief].
(668.) Brief for Foundation for Moral Law as Amicus Curiae Supporting Respondent Bipartisan Legal Advisory Group of the U.S. House of Representatives at 27, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) [hereinafter Foundation for Moral Law Brief].
(670.) Brief for the American Civil Rights Union as Amicus Curiae Supporting Hollingsworth and Respondent Bipartisan Legal Advisory Group (Addressing the Merits and Supporting Reversal) at 67, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) [hereinafter ACRU Brief].
(671.) Id. See also Foundation for Moral Law Brief, supra note 668, at 27-28 ("Even if we were to agree with Lawrence, which Amicus does not, that private sexual conduct is an aspect of a person's right to define one's own existence, that is far from saying that the person has a right to require that the federal government echo a state's 'formal recognition' of same-sex "marriage' and convey upon it all the benefits and recognitions that usually follow. Not even Lawrence requires such a leap.").
(672.) Foundation for Moral Law Brief, supra note 668, at 26.
(673.) ACRU Brief, supra note 670, at 7 (citing Washington v. Glucksberg, 521 U.S. 702 (1997)).
(675.) Brief for Liberty, Life, and Law Foundation and North Carolina Values Coalition as Amici Curiae Supporting Hollingsworth and Respondent Bipartisan Legal Advisory Group (Addressing the Merits and Supporting Reversal) at 2, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307)[hereinafter Liberty, Life and Law Foundation Brief].
(676.) U.S. Senators Brief, supra note 664, at 9 (citations omitted).; ACRU Brief, supra note 670, at 6.
(677.) U.S. Senators Brief, supra note 664, at 26.
(678.) Id. (citing Romer v. Evans, 517 U.S. 620, 635 (1996)).
(680.) Liberty Counsel Brief, supra note 663, at 28-29 (referring, as a "compare" cite, to Romer, 517 U.S. at 624).
(681.) Eagle Forum Brief, supra note 667, at 24 (emphasis in original).
(682.) Id. at 10 (citing Lawrence v. Texas, 539 U.S. 558, 604 (2003) (Scalia, J., dissenting).
(683.) Id. at 12 (citing Bd. of County Comm'rs, Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668, 695-96 (1996) (Scalia, J., dissenting)).
(684.) Brief for Westboro Baptist Church as Amicus Curiae Supporting Neither Party (Suggesting Reversal) at 7, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307)[hereinafter Westboro Baptist Church Brief] (quoting Lawrence, 539 U.S. at 603).
(685.) Brief for Gay & Lesbian Advocates & Defenders and Lambda Legal Defense and Education Fund, Inc., as Amici Curiae Supporting Respondent Edith Windsor and the United States (Addressing the Merits and Supporting Affirmance), United States v. Windsor, at 3, 133 S. Ct. 2675 (2013) (No. 12-307)[hereinafter GLAAD & Lambda Brief].
(686.) Id. at 6.
(687.) Id. at 6-7 (citing Romer v. Evans, 517 U.S. 620, 635 (1996)).
(688.) Id. at 7 (citations omitted).
(689.) Id. at 7-8 (citing Romer, 517 U.S. 620; Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985); U.S. Dep't of Agriculture v. Moreno, 413 U.S. 528 (1973); and Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O'Connor, J., concurring in the judgment)).
(690.) Id. at 17 (citing Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring)).
(691.) Id. at 13 (citing Lawrence, 539 U.S. at 571 ("IF]or centuries there have been powerful voices to condemn homosexual conduct as immoral"); Romer, 517 U.S. at 633).
(692.) Id. at 13-14 (citations omitted).
(693.) Brief on the Merits for the States of New York et al., as Amici Curiae in Support of Respondent Edith Schlain Windsor at 18, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) ]hereinafter New York Brief].
(694.) Id. at 5-6 (citing Romer, 517 U.S. at 633 (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37 (1928))).
(695.) Id. at 6. See also Brief of Amicus Curiae The American Bar Ass'n in Support of Respondent Edith Schlain Windsor on the Merits Question at 25, United States v. Windsor, 133. S. Ct. 2675 (2013) (No. 12-307) ]hereinafter ABA Windsor].
(696.) New York Brief, supra note 693, at 18 (quoting Romer, 517 U.S. at 632, 633).
(697.) Id. at 21 (quoting Romer, 517 U.S. at 632).
(698.) Id. at 19 (quoting Romer, 517 U.S. at 635).
(699.) Brief of 172 Members of the U.S. House of Representatives and 40 U.S. Senators as Amici Curiae in Support of Respondent Edith Schlain Windsor, Urging Affirmance on the Merits at 3, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) [hereinafter 172 Members Brief].
(700.) See id. at 20 (explaining that DOMA is different from other Congressional acts because "[a] clearly stated purpose for its enactment was to express moral disapproval of a disfavored minority group.").
(701.) Id. at 12 (citations omitted) (quoting Romer, 517 U.S. at 633); Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J. dissenting)). The amicus brief also stressed Section 3's sweep: "[I]t affects thousands of laws and regulations-many more than the eight laws and policies identified by the petitioners in Romer ... Given the lack of grounding in any of the affected statutes or regulations, it is impossible to discern a rational connection between DOMA and any of the legitimate purposes that those laws are designed to achieve." Id. at 18 (citation omitted).
(702.) Id. at 21 (quoting Lawrence v. Texas, 539 U.S. 558, 571 (2003); Romer, 517 U.S. at 633, 635).
(703.) See, e.g., Brief for the Anti-Defamation League et al. As Amici Curiae In Support Of Respondent Edith Windsor On The Merits Question at 20, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) [hereinafter Anti-Defamation League Brief] (quoting Lawrence, 539 U.S. at 577).
(705.) Brief Amici Curiae of the American Humanist Ass'n and American Atheists, Inc. et al. in Support of Respondents Addressing the Merits at 15, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) [hereinafter American Humanist Ass'n Brief] (quoting Lawrence, 539 U.S. at 571). Amici leave out the concluding words of this passage: "through operation of the criminal law." Lawrence, 539 U.S. at 571.
(706.) American Humanist Ass'n Brief, supra note 705, at 15 (quoting Lawrence, 539 U.S. at 571 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 850 (1992))).
(707.) Anti-Defamation League Brief, supra note 703, at 19.
(708.) Id. at 20 (citations omitted).
(709.) Id. at 20-21 (citations omitted).
(710.) Id. at 2-3.
(711.) American Humanist Ass'n Brief, supra note 705, at 17 (quoting Lawrence, 539 U.S. at 590 (Scalia, J., dissenting)).
(713.) Amici Curiae Brief of Robert P. George et al. in Support of Hollingsworth and Bipartisan Legal Advisory Group Addressing the Merits and Supporting Reversal at 5-6, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) & United States v. Windsor, 133 S. Ct. 2675 (2013) (Nos. 12-144 & 12-307) [hereinafter George brief].
(714.) Id. at 5.
(715.) Id. at 15.
(716.) In elaborating the idea of "conjugal marriage," Justice Alito does not cite to their brief but to their book elaborating on the arguments. See discussion infra Part IV.G.2.
(717.) See generally Brief Amici Curiae of National Ass'n of Evangelicals et al. in Support of Bipartisan Legal Advisory Group of the United States House of Representatives Addressing the Merits, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) [hereinafter National Ass'n of Evangelicals Brief].
(718.) Id. at 1.
(719.) Id. at 2.
(720.) Id. at 11.
(721.) Id. at 12.
(723.) Id. at 12-13.
(724.) See discussion infra Part IV.
(725.) National Ass'n of Evangelicals Brief, supra note 717, at 19.
(726.) Id. at 20 (citations omitted).
(727.) Id. at 21.
(728.) See, e.g., Liberty Counsel Brief, supra note 663, at 36; Amicus Curiae Brief of Manhattan Declaration in Support of Respondent Bipartisan Legal Advisory Group Addressing the Merits and Supporting Reversal at n.15, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) [hereinafter Manhattan Declaration Brief].
(729.) Indiana Brief, supra note 640, at 3-4.
(730.) Id. at 2-3.
(731.) Manhattan Declaration Brief, supra note 728, at 3.
(732.) Amicus Curiae Brief for Coalition for the Protection of Marriage in Support of Hollingsworth and Bipartisan Legal Advisory Group Addressing the Merits and Supporting Reversal at 35, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) & United States v. Windsor, 133 S. Ct. 2675 (2013) (Nos. 12-144 & 12-307) [hereinafter Protection of Marriage Brief[ (quoting Brief for Judge Georg Ress and the Marriage Law Foundation as Amici Curiae Supporting Petitioners at 2, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144)).
(733.) Liberty Counsel Brief, supra note 663, at 36.
(734.) Id. at 45.
(735.) Indiana Brief, supra note 640, at 7. The amici states did not take a position on "whether homosexuals constitute a specially protected class in the abstract," just on whether or not "DOMA, and by extension traditional state definitions of marriage, constitute facial discrimination against homosexuals." Id. at 5.
(736.) Id. at 7.
(737.) Manhattan Declaration Brief, supra note 728, at 13.
(738.) Protection of Marriage Brief, supra note 732, at 4-5.
(739.) Id. at 5.
(740.) Id. at 6.
(741.) Id. at 35.
(742.) Id. at 6.
(743.) Id. at 7.
(744.) Id. at 8.
(745.) Id. at 7.
(746.) Manhattan Declaration Brief, supra note 728, at 8-9.
(747.) Id. at 4-5 (quoting ROBERT GEORGE ET AL., MANHA'TTAN DECLARATION 4 (2009)).
(748.) Protection of Marriage Brief, supra note 732, at 6-7.
(749.) Manhattan Declaration Brief, supra note 728, at 6- 7.
(750.) See Westboro Baptist Church Brief, supra note 684, at 13-20.
(751.) Foundation for Moral Law Brief, supra note 668, at 3.
(753.) Id. at 1-2.
(754.) Liberty, Life, and Law Foundation Brief, supra note 675, at 34, (quoting Bowers v. Hardwick, 478 U.S. 186, 197 (1986) (Burger, J., concurring)).
(755.) Id. at 4.
(756.) Brief Amici Curiae of the Beverly Lehaye Institute, and the National Legal Foundation, in Support of the Respondent, Bipartisan Legal Advisory Group of the United States House of Representatives, Addressing the Merits and Supporting Reversal at 1, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) [hereinafter Lehaye Brief]; Id. at 5 (citing U.S.v. Windsor, 699 F.3d at 199-202).
(757.) Id. at 6-20 (discussing, in particular, Mark Regnerus, How Different are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, 41 SOC. Sc. RESEARCH 752 (2012))).
(758.) See GLAAD and Lambda Brief, supra note 685, at 22-25 (quoting H.R. REP. No. 1-4-664, supra note 11, at 15-16).
(759.) 172 Members Brief, supra note 699, at 22 (quoting Lawrence v. Texas, 539 U.S. 558, 560 (2003); Heller v. Doe, 509 U.S. 312, 327 (1993)).
(760.) American Humanist Ass'n Brief, supra note 705, at 20.
(761.) Id. (quoting United States Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973)).
(762.) ABA Windsor, supra note 695, at 25.
(763.) See id. at 6, 8-26 (quoting Romer v. Evans, 517 U.S. 620, 633 (1996)).
(764.) Id. at 29 (citing Romer, 517 U.S. at 635).
(765.) Id. at 30 (quoting Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives at 30-37, 41-43, Windsor, 133 S. Ct. 2675 (No. 12-307).
(766.) Id. at 30 (citing Family Law Brief, supra note 617 at 7-9).
(767.) Id. at 32.
(768.) Id. at 33 (quoting Mass. v. United States Dep't of Health & Human Servs., 682 F.3d 1, 15 (1st Cir. 2012)).
(769.) See AJC Brief, supra note 654, at 2, 8.
(770.) See id. at 8-9.
(771.) Id. at 20.
(772.) Brief Amici Curiae Family & Child Welfare Law Professors Addressing the Merits & in Support of Respondents at 5, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) [hereinafter Family & Child Welfare Brief] (quoting Lawrence v. Texas, 539 U.S. 558, 604 (2003) (Scalia, J., dissenting)).
(773.) Id. at 10 (quoting Lawrence, 539 U.S. at 567).
(774.) Id. at 4, 8-9.
(775.) Id. at 36 (quoting Romer v. Evans, 517 U.S. 620, 632 (1996)).
(776.) Brief of the American Psychological Ass'n, et al. as Amici Curiae on the Merits in Support of Affirmance, Windsor, 133 S. Ct. 2675 (No. 12-307) [hereinafter APA Windsor]. For discussion of its Romer brief, see APA Brief, supra note 345.
(777.) APA Windsor, supra note 775, at 18-19.
(778.) Id. at 34.
(779.) Id. at 34-35.
(780.) Id. at 34-35; id. at 36 (arguing that DOMA discriminates against same-sex couples by "perpetuating 'archaic and stereotypic notions' or by stigmatizing members of the disfavored group as "'innately inferior'") (quoting Heckler v. Mathews, 465 U.S. 728, 739-40 (1984)); Brief of Amici Curiae Family Equality Council et al. in Support of Respondents Perry, Stier, Katami, Zarrillo, City & County of San Francisco, & Edith Schlain Windsor, in her Capacity as Executor of the Estate of Thea Clara Spyer, Addressing the Merits & Supporting Affirmance at 3, Windsor, 133 S. Ct. 2675 (No. 12307) [hereinafter Family Equality Council Brief].
(781.) Family Equality Council Brief, supra note 780, at 3, 16 (quoting Brief of Petitioners at 37, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144)).
(782.) Id. at 8,24.
(783.) Id. at 33.
(784.) See supra note 276 for discussion of the Christian Legal Society brief in Romer.
(785.) Becket Brief, supra note 654, at 29.
(787.) Id. at 4.
(788.) Id. at 2, 29.
(789.) Catholic Answers Brief, supra note 657, at 4.
(790.) Id. at 11.
(791.) Id. (quoting Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 336 (1987)).
(792.) Id. at 12 (quoting Chai R. Feldblum, Moral Conflict and Conflicting Liberties, in SAME-SEX MARRIAGE AND RELIGIOUS LIBERTY: EMERGING CONFLICTS 123, 130 (Douglas Laycock et al. eds., 2008)) (disputing characterization by Civil Rights Commissioner Chai Feldblum).
(794.) See id. at 30. The brief detailed concerns over diminished protection of conventional religious beliefs under Title VII. Id. at 30-32. For a similar concern about the impact of heightened scrutiny, see Brief Amicus Curiae of United States Conference of Catholic Bishops in Support of Respondent Bipartisan Legal Advisory Group, Addressing the Merits, and Supporting Reversal at 16-20, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307).
(795.) Brief of Amici Curiae Chaplain Alliance for Religious Liberty, et al., in Support of the Bipartisan Legal Advisory Group Addressing the Merits & Supporting Reversal at 3-4, Windsor, 133 S. Ct. 2675 (No. 12-307) [hereinafter Chaplain Alliance Brief[.
(796.) Id. at 4.
(797.) Id. at 4-5.
(798.) Manhattan Declaration Brief, supra note 728, at 3-4.
(799.) Id. at 15.
(800.) Id. at 15-19.
(801.) See id. at 17.
(802.) See id. at 15.
(803.) Liberty, Life and Law Foundation Brief, supra note 675, at 16.
(804.) Id. at 17.
(805.) See id. at 15-16.
(806.) Brief of Amici Curiae Bishops of the Episcopal Church in the States of California, Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, & Washington & the District of Columbia et al. on the Merits & in Support of Affinnance in Favor of Respondent Edith Schlain Windsor at 3, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) [hereinafter Episcopal Bishops Brief].
(807.) Id. at 5.
(808.) Id. at 4.
(811.) American Humanist Ass'n Brief, supra note 705, at 4.
(813.) Anti-Defamation League Brief, supra note 703, at 19 (citing Lawrence v. Texas, 539 U.S. 558, 574-75 (2003)) (citation omitted).
(814.) Amici Curiae Brief of Utah Pride Center, Campaign for Southern Equality, Equality Federation & Twenty-Five State-Wide Equality Organizations at 30, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) [hereinafter Utah Pride Brief].
(815.) See AJC Brief, supra note 654, at 3-4.
(816.) Id. at 10-11.
(817.) Id. at 3, 21.
(818.) Id. at 15.
(819.) Id. at 23-25.
(820.) Id. at 32-34.
(821.) Indiana Brief, supra note 640, at 1.
(822.) Eagle Forum Brief, supra note 667, at 5.
(823.) Id. at 10, 12. Eagle Forum also points to the failure of the Equal Rights Amendment, which "might have provided a basis for the claims here" as evidence of the American people's rejection of same-sex marriage. Id. at 5-6 (citing Nat'l Org. for Women v. Idaho, 459 U.S. 809 (1982)).
(824.) Amicus Curiae Brief of Concerned Women for America, Addressing the Merits & Supporting Respondent Bipartisan Legal Advisory Group of the United States House of Representatives and Reversal at 33, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) [hereinafter CWA Windsor]
(825.) See id. at 3, 8, 11-33.
(826.) Id. at 12, 14.
(827.) See CWA Brief, supra note 234, at 2.
(828.) Utah Pride Brief, supra note 814, at 1; id. at 2-3.
(829.) Id. at 22.
(830.) Id. at 22-23.
(831.) 133 S. Ct. 2652 (2013).
(832.) See infra Part IV.F for discussion.
(833.) On the idea of judicial minimalism and the contrast between minimalist and maximalist decisions, see CASS SUNSTEIN, ONE CASE AT A TIME (1999).
(834.) Windsor, 133 S. Ct. at 2706 (Scalia, J., dissenting).
(835.) Id. at 2683-84.
(836.) Id. at 2683-84, 2688.
(837.) Id. at 2692 (citing Romer v. Evans, 517 U.S. 610, 633 (1996)).
(838.) Id. at 2693.
(839.) Id. (citing Dept. of Agriculture v. Moreno, 413 U.S. 528, 534-45 (1973)).
(841.) Id. at 2694.
(842.) Id.; see Romer, 517 U.S. at 635.
(843.) Windsor, 133 S. Ct. at 2693-94.
(844.) Id. at 2695-96.
(846.) Romer, 517 U.S. at 635.
(847.) Windsor, 133 S. Ct. at 2694.
(848.) Id. at 2696.
(849.) Lawrence v. Texas, 539 U.S. 558, 578 (2003).
(850.) Windsor, 133 S. Ct. at 2689.
(851.) The Court avoided reaching this issue in Hollingsworth v. Perry because it vacated the Ninth Circuit opinion due to a lack of jurisdiction, 133 S. Ct. at 2659, over Justice Kennedy's strongly-worded dissent, Id. at 2668 (Kennedy, J., dissenting) (submitting that "the Article III requirement for a justiciable case or controversy does not prevent proponents from having their day in court").
(852.) Windsor, 133 S. Ct. at 2689.
(855.) Lawrence v. Texas, 539 U.S. 558, 579 (2003).
(856.) 133 S. Ct. at 2692 (citing Bond v. United States, 131 S. Ct. 2355, 2364 (2011)).
(857.) 539 U.S. at 578-79.
(858.) 133 S. Ct. at 2690 (citing, e.g., Goodridge v. Dep't of Public Health, 798 N.E. 2d 941 (2003)).
(859.) Id. at 2694.
(860.) Id. at 2692.
(861.) Id. (citing Lawrence, 539 U.S. at 567).
(863.) Id. at 2692-93.
(864.) Id. at 2693.
(866.) Id. Justice Kennedy declines to rest on a pure states rights or federalism rationale, that is, that Congress lacked authority to enact DOMA because it lacks authority to regulate marriage, because domestic relations is the traditional province of state law. Rather, he states "it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance." Id. at 2692. He states that "the State's power in defining the marital relation is of central relevance in this case quite apart from principles of federalism," stressing the contrast between states using their "historic and essential authority" to define marriage in a way that enhances the status of same-sex couples, and DOMA imposing "restrictions and disabilities on those couples." Id.
(867.) Id. at 2693.
(868.) Id. (quoting Massachusetts v. DHHS, 682 F. 3d at 12-13).
(869.) Id. at 2693-94.
(870.) Id. at 2692.
(871.) Id. at 2694.
(872.) Id. See FLEMING & MCCLAIN, supra note 159, at 190-205 (elaborating a view of marriage as securing rights and responsibilities and allowing various substantive moral goods).
(873.) 133 S. Ct. at 2694.
(874.) Id. at 2695.
(875.) Id. at 2694. At oral argument, Justice Ginsburg, who joined the majority opinion, emphasized that the federal laws referencing marriage "touch every aspect of life." U.S.v. Windsor, Transcript of Oral Argument (March 27, 2013) at 71, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307). She observed, that under DOMA, the state has two kinds of marriage: "the full marriage, and then this sort of skim milk marriage." Id.
(876.) Windsor, 133 S. Ct. at 2694.
(878.) Id. (citing Lawrence v. Texas, 539 U.S. 558, 558 (2003)).
(879.) Id. at 2695.
(880.) Id at 2696.
(882.) Id. at 2689-90.
(883.) Id. at 2693.
(884.) See discussion infra Part IV.F.
(885.) Windsor, 133 S. Ct. at 2696 (Roberts, C.J., dissenting).
(886.) Id. at 2697.
(890.) Id. at 2696.
(891.) Id. (emphasis in original).
(892.) Id. at 2718 (Alito, J., dissenting).
(894.) Id. at 2718-19.
(895.) Id. at 2719.
(896.) Id. at 2718-19. For example, he cites SHERIF GIGRIS, RYAN ANDERSON, AND ROBERT GEORGE, WHAT IS MARRIAGE: MAN AND WOMAN: A DEFENSE (2012) as offering a "philosophical" account of the basis for marriage, Id. ("They argue that marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so."). The authors also filed an amicus brief, the George Brief, supra note 713, discussed supra in Part IV. D.2.
(897.) Windsor, 133 S. Ct. at 2718.
(898.) Id. at 2719.
(899.) Id. at 2717.
(900.) Id. at 2718.
(901.) Id. at 2717-18.
(903.) Id. at 2720.
(905.) Id. at 2715-16.
(906.) Id. at 2715.
(907.) Id. at 2714.
(908.) Loving v. Virginia, 388 U.S. 1 (1967).
(909.) 133 S. Ct. at 2715.
(910.) Id. at 2698 (Scalia, J., dissenting) (emphasis in original).
(911.) Id. at 2710.
(912.) Id. at 2710.
(913.) Id. at 2710-11.
(914.) Id. at 2711.
(915.) Id. at 2706.
(916.) Id. at 2706 (citing Heller v. Doe, 509 U.S. 312, 320 (1993), as supporting the point that "a classification 'must be upheld.., if there is any reasonably conceivable state of facts' that could justify it.").
(917.) Id. at 2707.
(922.) Id. at 2707-08.
(923.) Id. at 2707.
(924.) Id. at 2709.
(925.) Id. at 2708 (emphasis in original).
(927.) Id. at 2709.
(928.) Compare Windsor v. U.S., 699 F. 3d 169, 191 (2d Cir. 2012) (Straub, J., dissenting) (reporting that the Report "described Baehr [v. Lewin, 852 P.2d 44 (1993)] as part of an 'orchestrated legal assault being waged against traditional heterosexual marriage.").
(929.) 133 S. Ct. at 2707.
(930.) Id. at 2708.
(935.) Lawrence, 539 U.S. at 604 (Scalia, J., dissenting).
(936.) Id. at 604-05.
(937.) 133 S. Ct. at 2708.
(938.) Id. at 2709-10.
(939.) Id. at 2710.
(940.) Id. at 2693 (quoting Romer).
(941.) Adam Liptak, Surprising Friend of Gay Riy, hts in a High Place, N.Y. TIMES, Sept. 1, 2013.
(943.) Id. (quoting contemporaneous statement in the New York Native by Professor Arthur Leonard, gay rights expert at New York Law School).
(944.) Id. Liptak is referring to Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (1981), cited in Lawrence v. Texas, 539 U.S. 558, 573, 576 (2003).
(945.) Ethan Bronner, A Conservative Whose Supreme Court Bid Set the Senate Afire, N.Y. TIMES, Dec. 19, 2012; Mark Sherman, Bork Nomination Fight Altered Judicial Selection, http://www .salon.corn/2012/12/19/bork_nomination_fight_altered_judicial_selection/
(946.) Robert H. Bork, Our Judicial Oligarchy, FIRST THINGS, at 21, 22 (Nov. 1996), available at http: //www.firstthings.com/article/2007/11/003-the-end-of-democracy-our-judicial-oligarchy-35.
(947.) Transcript of Oral Argument, supra note 875, at 112-13.
(948.) Id. at 113.
(949.) COLO. REV. STAT. [section][section] 24-601 et seq.
(950.) Transcript of Oral Argument, supra note 875, at 108.
(952.) Treena Shapiro, Hawaii Becomes 15th U.S. State to Legalize Gay Marriage, http://www.reuters.com/article/2013/11/13/us-usa-gaymarriage-hawaii- idUSBRE9AC15U20131113?feedType=RSS.
(953.) The Big Story: Gay Marriage Ruling Already in Use in Other Cases, http://bigstory.ap.org/article/gay-marriage-ruling-already-use-other-cases.
(954.) Complaint for Declaratory and Injunctive Relief, Deb Whitewood and Susan Whitewood et al. v. Thomas W. Corbett, Civil Action No. _, United States District Court, Middle District of Pennsylvania, at 4, 40.
(955.) Trip Gabriel, Move for Gay Marriage Gets a Lift in Pennsylvania, N.Y. TIMES (July 11, 2013), http: //www.nytimes.com/2013/07/12/us/pennsylvanias-attorney-general-wont-fight-gaymarriage- lawsuit.html?_r=0&pagewanted=print.
(956.) Decision on Motion for Summary Judgment, Garden State Equality et al v. Paula Dow et al., Docket No. L-1729-11, Sept. 27, 2013.
(957.) Id. at 50.
(958.) Supreme Court Decision on the Motion for a Stay in Garden State Equality Marriage Case, 34, 18 (Oct. 18, 2013), http://www.judiciary.state.nj.us/samesex/Supreme%20Court% 20Opinion%20on%20Stay%20Motion.pdf. All of the court proceedings may be found at: http://www.judiciary.state.nj.us/samesex/.
(959.) James Beattie, Christie's Vow to Appeal Court-hnposed Gay Marriage Lasts 3 Weeks, http: //www.cnsnews.com/news/article/james-beattie/christie-s-vow-appeal-court-imposed-gaymarriage-lasts-3-weeks. The New Jersey Attorney General withdrew the appeal on October 21, 2013. See http://www.judiciary'state.nj.us/samesex/AG%20Withdrawal%20of%20Appeal%20102113.pdf
(960.) Beattie, supra note 959 (emphasis supplied).
(961.) Decision on Motion for Summary Judgment, Garden State Equality et al v. Paula Dow et al., Docket No. L-1729-11, Sept. 27, 2013 at 1-4, 6-7. An additional issue is whether civil unions actually produce equality even for purposes of state law. See id. at 6-8 (noting that Lewis plaintiffs, in subsequent proceeding, relied on report by Civil Union Review Commission that found separate category, of civil union "invites and encourages unequal treatment").
LINDA C. MCCLAIN, Professor of Law and Paul M. Siskind Research Scholar, Boston University School of Law. This article grew out of a lecture I delivered at Duke University in celebration of the 20th anniversary issue of the Duke Journal of Gender Law & Policy. I am grateful to former Editor-in-Chief John Cosgriff for inviting me and to Editor-in-Chief Thayne Stoddard and his staff for their excellent work on this Article. I thank BU Law students Tina Borysthen-Tkacz, Tekhara Timber, and Kate Lebeaux for valuable research assistance. I also appreciate the help with sources provided by Stefanie Weigmann, Assistant Director for Research, Faculty Services, and Education Technology, Pappas Law Library. A Boston University summer research grant supported this project.
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|Title Annotation:||IV. Challenges to Section 3 of DOMA D. Moral Disapproval, Romer, and More in Friends of the Court Briefs before the Supreme Court (b) Arguments Made in Support of Windsor through Conclusion, with footnotes, p. 436-478|
|Author:||McClain, Linda C.|
|Publication:||Duke Journal of Gender Law & Policy|
|Date:||Mar 22, 2013|
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