Windsor, Shelby County, and the Demise of Originalism: A Personal Account
25 Pages Posted: 14 Feb 2019
Date Written: 2014
By the final day of the Supreme Court’s 2012–2013 Term, when the Court issued decisions in challenges to two laws that discriminated against same-sex marriages, a remarkable consensus anticipated essentially the outcomes announced. Court watchers expected that Justice-in-the-middle Anthony Kennedy would lead the Court cautiously toward protecting against sexual orientation discrimination and, in any event, would not set back the cause of marriage equality by upholding either law. Although a substantial and passionate minority of the U.S. population continued to oppose the ability of gays and lesbians to marry, by June 6, 2013, the issue’s eventual resolution seemed quite clear and few believed that the Court would put itself on the “wrong side” of that history.
A closely divided Court in United States v. Windsor met these expectations by declaring unconstitutional the section of the Defense of Marriage Act (DOMA) that limited marriage for federal law purposes to a man and woman. A different five-Justice majority in Hollingsworth v. Perry declined to reach the constitutionality of similar discrimination in a state law, California’s Proposition 8, by finding that the plaintiffs lacked standing. The two decisions, in effect, ended more than one thousand forms of federal discrimination against married same-sex couples and, by allowing the Perry district court ruling to stand, made California the thirteenth state, plus the District of Columbia, to permit same-sex couples to marry. More than thirty-eight percent of the U.S. population now lives in jurisdictions where women and men may marry or have their out-of-state marriages recognized regardless of sexual orientation—and after Windsor, receive federal as well as state benefits associated with marriage.
The Court’s invalidation of DOMA, and the very fact that the outcome was widely anticipated, marked an extraordinary evolution in constitutional law, as interpreted by the Court and understood by the American people. Windsor’s discussion of the merits began by emphasizing the rapid and recent changes in how states and the public have approached the issue. When Congress enacted DOMA in 1996, every state limited marriage to a man and a woman and many Americans had not seriously contemplated that it could be otherwise.
Justice Antonin Scalia alluded to that change, with the intent of discrediting its legitimate role in constitutional interpretation, during the March 2013 oral arguments when he pressed marriage-equality advocate Theodore Olson to answer the question: “When did it become unconstitutional to exclude homosexual couples from marriage?” This question foreshadowed the two principal grounds on which Windsor is constitutionally significant: first, for what it said about the substantive constitutional protections that apply to sexual orientation discrimination, and second, for the interpretive methodology the Court used to reach its conclusions. Windsor’s four opinions—one for the five-Justice majority and three for the four dissenting Justices—disagreed about precisely what the Court concluded, which may caution restraint in speculating about the case’s future import.9 This Essay hazards the prediction that 2013 will be regarded as a momentous year in the history of two distinct legal/political movements that first gained momentum in the 1980s: most obviously, strengthening the movement to combat sexual orientation discrimination and repression; and, more generally and less noted, weakening the movement to promote “originalism” in constitutional interpretation and American politics.
Keywords: Courts, Family Law, Sexuality and the Law
JEL Classification: I00, K2, K36
Suggested Citation: Suggested Citation