The Supreme Court on Wednesday, June 26th, struck down a key part of the Defense of Marriage Act, the 1996 law signed by President Clinton that defined marriage as between a man and a woman for the purpose of federal law.
The decision was 5-4, with the majority opinion written by Justice Anthony Kennedy — who also wrote the court’s historic gay rights decisions in Romer v. Evans and Lawrence v. Texas. Justices Antonin Scalia, Samuel Alito, and John Roberts all filed dissents. Justice Clarence Thomas joined Scalia’s dissent, and joined Alito’s in part, while Roberts joined Scalia’s in part. Justices Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg joined Kennedy’s majority opinion.
What issues did the Court have to decide on? Three issues were focused on... the first was the equal protection issue. The second was whether the fact that the executive branch agrees with Windsor means that there isn’t a real controversy in this case, meaning the court doesn’t have jurisdiction. The third was whether BLAG (the Bipartisan Legal Advisory Group) would be harmed by DOMA being overturned, and thus whether it has standing to defend the law (a friend-of-the-court brief by Harvard professor Vicki Jackson wrote that even Congress doesn’t have standing, and even if it did, BLAG wouldn’t).
Justice Kennedy’s ruling held that the court had jurisdiction in the case, effectively ruling that there was a real controversy and that BLAG had standing to defend the law. For Justice Kennedy, his ruling was based on his judgment that DOMA violates the equal protection clause. Section 1 of the Fourteenth Amendment states: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
At NIDL we celebrate the Court's decision but realize there will and is more work to be done in the area of equal rights.