Opinion roundup: Supreme Court's historic week

  • Updated: June 26, 2013 - 7:44 PM

Rep. John Lewis, D-Ga., left, and Rep. John Conyers, D-Mich., right, co-chairs of the Civil Rights Taskforce of the Congressional Black Caucus, join other members of the House to express disappointment in the Supreme Court's decision on Shelby County v. Holder that invalidates Section 4 of the Voting Rights Act.

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‘The right side of history’

America’s recent rapid acceptance of same-sex unions received a stamp of approval in a historic decision from the U.S. Supreme Court on Wednesday. In a 5-4 ruling that speaks well of the court and the nation, justices struck down the noxious federal Defense of Marriage Act of 1996, proclaiming it unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.

Legally married same-sex couples are now entitled to all of the federal benefits that currently are awarded to the partners of heterosexual marriages. That includes tax law and military benefits.

A second Supreme Court decision released Wednesday brought more good news. Justices cleared the way for gay and lesbian marriage to resume in California, saying that lower court rulings overturning a voter-approved ban on same-sex marriage in California could stand.

Neither ruling requires states to adopt same-sex marriage, but some legal experts think the DOMA decision could play a role in future court challenges to statutes outlawing the unions. Partners of the same sex can legally marry in 13 states and the District of Columbia.

While struggles over gay marriage will continue in many states, Americans are clearly embracing their gay and lesbian family members, neighbors and coworkers. They have laid the groundwork for equality by serving their nation and communities well and going about their lives with dignity and integrity.

Though it stopped short of overturning bans on same-sex marriage, the U.S. Supreme Court placed itself on the right side of history.

- From an editorial in the Kansas City Star

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‘All deliberate speed” — that was the gradualist coda the U.S. Supreme Court added in 1955 to its second Brown v. Board of Education ruling after it ended school segregation. In striking down the Defense of Marriage Act without establishing a general constitutional right for gay people to marry, the court did the same thing for same-sex marriage that it once did for segregation: declared a principle without putting it fully into practice. …

Beyond the abstractions, things get complicated quickly. What will happen to same-sex marriages in states that don’t recognize them? And, if same-sex marriages are now entitled to “equal dignity” under the Constitution, can some states continue to deny people of the same sex to wed?

- NOAH FELDMAN, a law professor at Harvard University, writing for Bloomberg View

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The problem faced by opponents of the Defense of Marriage Act is that there was no clear constitutional hook for striking it down. The Equal Protection Clause does not seem to apply because gay people (unlike, say, African-Americans) have not been regarded as politically weak enough to be a “suspect class,” justifying heightened review. That means that only a rational basis is necessary to uphold DOMA and a rational basis is easy to find (uniformity, efficiency, blah, blah, blah).

The Due Process Clause does not seem to apply because that clause protects only rights that are rooted in history and tradition, and the right of same-sex marriage, however compelling a moral issue it may seem today, is not such a right. Federalism says that (under ill-defined conditions) the U.S. government cannot trump state law, especially in an area like family law, but in fact there are plenty of federal laws that regulate marriage, at least along the margins.

In a remarkable opinion for the majority, Justice Anthony Kennedy manages to hit on all these theories without really endorsing any of them. After a long peroration on the importance of federalism, he disclaims it as a basis for the opinion — for the reason, I suspect, that if the unconstitutionality of DOMA is based on federalist principles, this case will not be a precedent that can be used to strike down state laws that refuse to recognize same-sex marriage in the future.

He then vaguely invokes both due process and equal protection, without explaining how he overcomes the limits on those doctrines. He does not, for example, declare homosexuals a suspect class, nor does he (or could he) claim that same-sex marriage has roots in history and tradition.

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