Alvare on SCOTUS Same-Sex Marriage Decisions

Writing in SCOTUSBlog on the Supreme Court's recent decisions in two cases dealing with same-sex marriage, Professor Helen Alvaré says, "Once the Court decides to 'see' opposite-sex marriage definitions as intrinsically hostile and even demeaning to persons wishing to marry another person of the same-sex, the table is already set for same-sex marriage. Justice Kennedy can write that the majority's opinion has relevance only in situations in which a government decides to disagree with a state's prior recognition of same-sex marriage, but this is on its face an arbitrary line. If Kennedy and the rest of the majority can discern a 'bare desire to harm' in DOMA, they can probably find it in any state marriage law defining marriage as the union of one man and one woman. They can, as they did in Windsor, simply, arbitrarily, choose to ignore the states' essential interests in supporting the only institution that links children with their mothers and fathers."

"Should this come to pass, as my amicus brief argued before the Court, children and vulnerable Americans will suffer over time far more than privileged adults," Alvaré continues. "The latter can better insulate themselves from the myriad negative effects of divorcing sex, marriage and children. The former really do need what help the state can offer in the way of keeping these matters together."

Taking sides on the meaning of marriage, SCOTUSBlog, June 26, 2013. By Helen Alvaré.

"Many likely expected that, to the extent that a discussion of the 'nature of marriage' would feature at all in the Supreme Court’s same-sex marriage opinions, it would take place in the Hollingsworth v. Perry (Prop 8) case, assuming that the Court first saw its way clear to finding standing on the part of the official proponents of Prop 8. Windsor (DOMA), it was widely thought, could well be decided upon federalism grounds: i.e. states’ traditional authority over the validity and incidents of marriage.  Instead, the Supreme Court’s discussion over the meaning of marriage took place in Windsor, albeit after a fairly extended, but ultimately inconclusive and nondispositive treatment of federalism. This dynamic was introduced with the following paragraph:

Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.

"Thus began the Majority opinion’s series of statements about what marriage is, in the context of its Due Process and Equal Protection analyses of DOMA."