Fourteenth Amendment: Equal Protection Case Comment 127 Harv. L. Rev. 127

Windsor and Brown: Marriage Equality and Racial Equality



In his second inaugural address in January 2013, President Barack Obama associated the struggle for gay equality with that for racial equality by conjoining, alliteratively, Stonewall with Selma (along with Seneca Falls). The President went on to proclaim that “[o]ur journey is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well.”

The President was referring, of course, to the issue of gay marriage, and just five months later, the Supreme Court decided two landmark cases bearing on that issue. In United States v. Windsor, the Court invalidated Section 3 of the Defense of Marriage Act (DOMA), which supplied a definition of marriage for federal law purposes, such as allocating Social Security survivors’ benefits and determining the immigration status of the spouse of a U.S. citizen. Under DOMA, marriage consisted only of the union of a man and a woman; the federal government declined to recognize gay marriages lawfully performed in the states. The Court in Windsor invalidated that federal definition of marriage under the Fifth Amendment.

On the same day Windsor was decided, the Court in Hollingsworth v. Perry dismissed an appeal from a ruling by the U.S. Court of Appeals for the Ninth Circuit that had invalidated a California initiative (Proposition 8) defining marriage as the union of a man and a woman. Hollingsworth had presented the Justices with a wide array of options. One potential route was simply to reverse the lower court and reject a federal constitutional right to same-sex marriage. Another option was to affirm the Ninth Circuit – in an opinion that could have assumed various different breadths. The narrowest alternative, known colloquially as the “one-state” solution, was to invalidate Proposition 8, as the Ninth Circuit had done, on the ground that California had no permissible justification for depriving gay married couples of a status that had once been conferred upon them by state law. A broader option – the so-called “eight-state” solution, advocated by the Justice Department – was to require those states that had authorized civil unions for same-sex couples, including California, to permit gay marriage on the ground that no legitimate reason existed for granting same-sex couples all of the rights and benefits of marriage while withholding from them the formal title. The broadest option, known as the “fifty-state” solution, was simply to identify a federal constitutional right to same-sex marriage.

Eschewing all of these options, the Hollingsworth Court, by a vote of five to four, declined to reach the merits of the constitutional dispute. Instead, in an opinion by Chief Justice Roberts, the majority dismissed the appeal on the ground that the initiative’s official sponsors, who had intervened at trial to defend Proposition 8 after elected officials had declined to do so, lacked standing to prosecute the appeal (either to the Ninth Circuit or to the Supreme Court) of the district court’s decision invalidating the measure.