DOMA: 'Scalia was right' about ruling's impact, pro-gay rights lawyer says

The US Supreme Court has laid the legal groundwork to directly attack and overturn state bans on same-sex marriages, a lawyer involved in the recent historic gay rights cases at the high court said Tuesday.

Therese Stewart, chief deputy in the San Francisco City Attorney’s Office, said that Justice Anthony Kennedy’s majority opinion last week striking down part of the federal Defense of Marriage Act provides a roadmap for gay rights groups and same-sex couples to pursue the next phase of litigation to achieve full marriage equality in the US.

Ms. Stewart cited an ironic source for her analysis – the dissenting opinion of conservative Justice Antonin Scalia.

“I think Scalia is correct that this decision in the DOMA case will provide a real foundation even though it doesn’t exactly resolve the question,” Ms. Stewart said in a telephone briefing with members of the liberal legal group, the American Constitution Society.

The landmark decision declared that federal lawmakers who enacted DOMA in 1996 were motivated by a bare desire to harm and demean members of a politically unpopular group.

Justice Kennedy wrote that states that recognized same-sex marriages had done so out of a desire to protect the “personhood and dignity” of same-sex spouses.

He said there was no justification for the US government to enact a federal law with the purpose and effect of disparaging and injuring same-sex spouses by treating their state-endorsed relationships as second-class marriages or less.

The action invalidated a portion of DOMA that had barred same-sex spouses from receiving 1,100 federal benefits available to opposite-sex spouses.

In the process, the five-justice majority established a constitutional precedent.

Kennedy added a disclaimer at the conclusion of his decision: “This opinion and its holding are confined to those lawful marriages [in states that recognize same-sex marriages].”

Justice Scalia fired off a sharply-worded dissent. “I have heard such bald, unreasoned disclaimers before,” he said.

In 2003, Kennedy authored another landmark gay rights decision, this one invalidating a Texas sodomy law. At the time, Scalia denounced that decision as opening the door for same-sex marriages. Kennedy included a disclaimer that the Texas decision had nothing to do with same-sex marriage.

Despite that 10-year-old disclaimer, Kennedy nonetheless cited his own 2003 Texas opinion to support striking down a key part of DOMA.

“The real rationale of today’s opinion … is that DOMA is motivated by ‘bare … desire to harm’ couples in same-sex marriages,” Scalia said in his dissent. “How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”

No one should be fooled, Scalia said. It is just a matter of time for the other shoe to fall, he said.

“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition,” he wrote.

Chief Deputy City Attorney Stewart noted the similarity between Kennedy’s disclaimers in 2003 and 2013 and Scalia’s dissents identifying the broader significance of the holdings.

“Scalia was right before and he is right again,” Ms. Stewart said.

Not everyone agreed with Scalia’s analysis. Chief Justice John Roberts wrote a separate dissent to stake out a different position.

He said he supported Kennedy’s disclaimer that the opinion would be limited to the context of DOMA.

Chief Justice Roberts said the limiting principle was the majority’s reliance on federalism, the balance of power between the sovereign states and the national government.

Kennedy and the other majority justices viewed DOMA as a departure from a long-established federal-state balance that left to the states matters such as marriage, divorce, and child custody.

“But there is no such departure when one state adopts or keeps a definition of marriage that differs from that of its neighbor,” Roberts said. “It is entirely expected that state definitions would vary, subject to constitutional guarantees, from one state to the next,” he wrote.

Ultimately the debate is likely to come down to a clash between the power of sovereign states to define marriage as they wish versus the power of the courts to robustly enforce the constitutional guarantee of equal protection.

With the Supreme Court clearly split four to four on the basic issue of same-sex marriage, the final resolution may well fall, once again, to Justice Kennedy to strike the winning balance.

[Editor's note: A typo in an earlier version of the photo caption misspelled Antonin Scalia's first name.]