SCOTUS: Legal Consideration of Gays Requires “Careful Consideration”

(GayWebSource.com – Gay Media & Press Network) – Posted by Doug Magditch – HisBigD.com

Supreme Court Sketch, credit: Bill Hennessy

“This opinion and its holdings are confined to those lawful marriages.”

That is, technically, the third-to-last sentence in Supreme Court Justice Anthony Kennedy’s opinion in the ruling on the Defense of Marriage Act (DOMA), United States v Windsor. (That’s if you include “The judgement of the Court of Appeals for the Second Circuit is affirmed. It is so ordered.” If not, it’s the last sentence.)

Basically, the sentence is the majority’s way of saying, “We said a bunch of stuff, but it only applies to this case.” (Obviously, I’m paraphrasing here…)

As Justice Antonin Scalia noted in his dissent, the high court said something similar exactly 10 years before:

“When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with ‘whether the government must give formal recognition to any relationship that homosexual persons seek to enter.’” – Justice Antonin Scalia (citing Lawrence v. Texas)

You can bet this decision will be used in case after case, no matter what that third-to-last sentence says.

“I promise you this: The only thing that will ‘confine’ the Court’s holding is its sense of what it can get away with,” said Scalia, in his dissent.

“Careful Consideration”

The Court’s decision in United States v Windsor could have far-reaching effects. Whether intentional or not, Justice Anthony Kennedy’s wording in the majority decision could pave the way to creating a protected class for gays and lesbians:

“DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principals applicable to the Federal Government. See U.S. Const., Amdt. 5; Bolling v. Sharpe, 347 U.S. 497 (1954). The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U.S. 528, 534-535 (1973). In determining whether a law is motivated by an improper animus or purpose, “‘[d]iscriminations of an unusual character’” especially require careful consideration. Supra, at 19 (quoting Romer, supra, at 633). DOMA cannot survive under these principles.

happy couple 300x199 SCOTUS: Legal Consideration of Gays Requires Careful Consideration

Couple at Dallas Day of Decision Rally, credit: Doug Magditch

“This could have a large impact on future cases, with regard to persons who bring discriminatory cases under different laws because of sexual orientation. If they can use the language in Windsor to set forth that they are actually part of a protected class or a suspect class, then that would mean the court would need to review them using heightened scrutiny,” said Jessica Dixon Weaver, Assistant Professor of Law at Southern Methodist University’s Dedman School of Law.

Weaver says the “careful consideration” standard (as mentioned above) could be an important precedent in future discrimination cases. Among those cases are those involving discrimination based on sexual orientation in employment and housing. Texas law allows discrimination based on sexual orientation.

“It may be that the Windsor case is the foundation for moving lesbians and gays into a suspect class,” said Weaver.

The Justices who dissented expect the opinion will have far-reaching effects:

“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its tradition definition.” – Justice Antonin Scalia

However, the opinion only lightly touches on the “careful consideration” topic. It really will depend on how judges in future cases interpret it.

Full discussion with Jessica Dixon Weaver about the “careful consideration” standard:

www.youtube.com/watch?v=SPEWLqFRuCk

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