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The Supreme Court and the Battle for Marriage


Scott Lloyd

On June 26, the U.S. Supreme Court issued two historic 5-4 decisions in the cases United States v. Windsor and Hollingsworth v. Perry, both touching on the subject of same-sex marriage in light of the U.S. Constitution. In Windsor, the court ruled that a portion of the Defense of Marriage Act (DOMA), defining marriage as between a man and a woman for the purpose of federal law, is unconstitutional. In Hollingsworth, the court ruled that parties seeking to defend California’s constitutional amendment defining marriage as between one man and one woman did not have legal standing to appear before the court.

The effect that these cases will have on the broader national debate over marriage is unclear, but it is certain to be dramatic. As these developments unfold in the coming months and years, it will be important for Catholic citizens to have a clear understanding of what the court decided and what is at stake.


The first decision that the court announced involved the case of Edith Windsor, a New York woman who obtained a marriage license from Canada with her same-sex partner and then returned to reside in New York. When her partner died, Windsor had to pay more than $300,000 in estate taxes. After all, their “marriage” was not recognized by the federal government, which in 1996 defined marriage as between one man and one woman for the purposes of federal law in DOMA — legislation that was passed with large majorities in Congress and signed by President Bill Clinton.

Windsor sued, claiming that Section 3 of DOMA involves unconstitutional discrimination against people in same-sex marriages. Supreme Court Justice Anthony Kennedy, joined by Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, agreed. Their ruling stated, “DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”

The majority reasoned that although the federal government may legislate on the topic of marriage in some instances, marriage is usually a matter handled at the state level. Congress, it said, took an extraordinary step in defining marriage for the purposes of all federal statutes.

More important to the ruling, though, was what came next. According to the majority’s opinion, “DOMA seeks to injure the very class [‘those persons who are joined in same-sex marriages made lawful by the state’] New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government.”

The four remaining justices wrote a total of three dissenting opinions in Windsor. Chief Justice John Roberts’ brief dissent argued that Congress was empowered to define marriage for the purpose of its laws because marriage is a fundamental element of society. That the federal government legislated on marriage in DOMA is not enough to conclude, as the majority does, that “the ‘principle purpose’ … of the 342 Representatives and 85 Senators who voted for it, and the President who signed it, was a bare desire to harm.”

Roberts also stressed that the majority opinion does not affect the constitutionality of legally defining marriage as between one man and one woman; much of the analysis in the majority’s opinion is irrelevant since it relies so heavily on the fact that marriage belongs to the states as a legislative matter. He suggested that another law with the same purpose but a different rationale and legislative history could be found constitutional.

Justice Antonin Scalia wrote — as did Justice Roberts — that the Bipartisan Legal Advisory Group appointed by the U.S. House of Representatives lacked standing to appear before the court and that even if the group did have standing, the court had no power to declare the law unconstitutional. “The Court’s errors on both points,” he wrote, “spring forth from the same diseased root: an exalted conception of the role of this institution in America.”

Scalia further charged the majority with shifting justifications for its ruling, leaving unclear on which legal grounds its ruling rests.

“[W]hatever disappearing trail of its legalistic argle-bargle one chooses to follow,” the majority’s central problem with DOMA is its belief that it is motivated by a “bare … desire to do harm,” he wrote. The majority, he said, does not cite evidence for its accusation, nor does it acknowledge alternative justifications for DOMA.

The dissent stated that although the majority opinion does not directly alter any state marriage laws, it provides reasoning and language that will bias the debate toward same-sex marriage. It thereby telegraphs how the court would rule regarding a state law that takes the traditional view of marriage.

Scalia concluded, “In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters … and the challenge in the end proves more than today’s Court can handle.”

In his own dissent, Justice Samuel Alito noted that the majority appears to rest its opinion in some way in the “substantive due process” analysis familiar to the court, but this protects only fundamental rights and liberties that are deeply rooted in the nation’s history and tradition, which is not the case with same-sex marriage. Although Ms. Windsor and her attorney argued that an “equal protection” analysis applies, Alito explained that “our equal protection framework … is ill-suited for use in evaluating the constitutionality of laws based on the traditional understanding of marriage, which fundamentally turn on what marriage is.”

He continued, “In asking the Court to determine that Section 3 of DOMA is subject to and violates [equal protection guarantees], Windsor and the United States thus ask us to rule 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. … Acceptance of the argument would cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools.”

In conclusion, Alito wrote, the petitioners essentially asked the court to settle a question “that philosophers, historians, social scientists, and theologians are better qualified to explore.”


The litigation in Hollingsworth v. Perry arose after California residents voted in 2008 to amend the state constitution to define marriage as between one man and one woman. Two same-sex couples sued in response, stating that the amendment violated the equal protection and due process guarantees of the Constitution.

The majority opinion, which Chief Justice Roberts wrote and which Justices Scalia, Breyer, Ginsburg and Kagan joined, ruled that the parties defending the amendment, known as Proposition 8, did not have standing to appeal the district court’s decision. The ruling stated, “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.”

Justice Kennedy dissented, and Justices Clarence Thomas, Alito and Sotomayor joined. They argued that California’s initiative process is injured if state officials can exercise what is essentially a veto of the people’s legislative will by not defending the law.

In the end, advocates for the redefinition of marriage did not get from the court what they had hoped for, which is a ruling finding a constitutional right to same-sex marriage. For now, individual states are not compelled to recognize same-sex unions as marriages, and they are not compelled to recognize same-sex marriage licenses issued elsewhere.

Nonetheless, these two decisions do have sweeping consequences. As a result of the Windsor decision, wherever same-sex marriages are performed, the federal government must now recognize them for purposes of federal laws and benefits. And the Obama administration has decided to treat these marriage licenses as valid even if a couple’s state of residence does not.

Since the Hollingsworth ruling was handed down, the attorney general of California has ordered that marriages licenses must be issued to same-sex couples throughout the state. Those who voted for Proposition 8 seem to have little recourse to have their interests represented in court, but they have some. Many have argued, for example, that the original federal court decision only applied to two of the 58 counties in California. This opens the door for someone negatively affected by the ruling to challenge the attorney general’s shaky interpretation.

And how are Catholics to respond to all of this? According to Catholic social teaching, which is based on Scripture, sacred tradition and natural law, the institution of marriage — the faithful, lifelong union of one man and one woman — is the foundation of the family and vital to society. Homosexual persons must be treated with dignity and respect, but this does not mean that marriage can or should be redefined.

Those who refuse to recognize same-sex unions as marriages will experience a difficult road ahead in courts, public debates, the workplace and even at home. Laws and courts have already attempted to force individuals to provide services for same-sex wedding ceremonies. These same laws have also caused Catholic Charities adoption agencies in Massachusetts, Illinois and Washington, D.C., which refused to place children with same-sex couples, to close their doors.

Those who uphold the traditional definition of marriage now fall under the shadow of a Supreme Court opinion that insists that Catholics and other Americans of goodwill are motivated by a desire to demean and injure their fellow citizens. Yet, this is certainly not the last time that the court will take up the question of same-sex marriage, and the debate will continue in the years to come.

Catholics cannot afford to disengage and avoid the debate. In their daily lives and in the public square, they are now faced with the challenging task of witnessing to the truth of marriage and the Church’s teachings, which are not based on animus but love. The future of marriage in America will depend on this witness.

SCOTT LLOYD, Esq., is senior policy coordinator for the Knights of Columbus and a member of John Carrell Jenkins Council 7771 in Front Royal, Va.