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Stunted Revolutions


Inequality is something the United States does well.  Depending on a range of indicators – the provision of housing, income, balanced and stable infrastructure, the presence of the death penalty in many states – the motor of the free world is not as well oiled as some of its patriotic drummers claim.

When it comes to the battles over equality in the U.S. Supreme Court, the wait for great decisions has been long and sometimes disappointing. When judges are allowed room for a genuine well thought through activism, preference is given to dry legalism and obtuse reasoning.  The tip-toe effect is understandable for one reason: the justices have to masquerade as apolitical forces.

The Defense of Marriage Act (DOMA) and California’s Proposition 8 were always going to be key issues in a week filled with much activity on the bench.  Prefaces to many legal commentaries foretold greatness in the making.  The decision in the Windsor case striking down parts of DOMA and the Hollingsworth decision rejecting the lower court’s declaration that California’s Proposition 8 is unconstitutional – yielded no such thing.

Justice Scalia, unflappably conservative, decided in his dissenting judgment in the DOMA case that the court had “cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat.  We owed both of them better.”  A bit rough on the rub there, though the justice does have one vital point: the court might have done better.

Proposition 8, defining marriage as a union between man and woman, might have been held unconstitutional as violating the equal protection clause.  The court might have chosen to veer carefully, limiting its decision to California. It might have also been brave and taken the high ground to apply it to all states.

The majority decision, authored by Chief Justice Roberts, did no such thing, preferring instead to focus on matters touching on standing.  Proponents of the law, it was argued, lacked sufficient legal standing to bring an appeal.  As a result, the lower court’s ruling in favour of the plaintiffs who had sought to overturn Prop 8 is restored.  The rest will be left to Californian officials as to how they interpret it, though the general view is that the return of same-sex marriages to the state will be the main result.

As for DOMA’s constitutional status, hopes varied in terms of how it would stand or fall.  Those in favour of the act, a statute on the books since 1996, wished for various things; a traditional defence of marriage, or a declaration at very least that, even if it was unconstitutional, such things were best left to states.  The federal definition would be something else.

Instead, legal reasoning varied in the 5-4 ruling, though the majority judgment, authored by Justice Kennedy, insisted in somewhat stilted language that the statute was invalid for “treating those persons as living in [same-sex] marriages less respected than others”, being a “violation of the Fifth Amendment.”  The traditional definition effectively injured and disparaged the “personhood and dignity” of same-sex couples.

Simplicity can be a beautiful thing, but it simply wasn’t present here.  An essential feature of the decision is its lack of compulsion – the ruling does not compel any state to allow gay marriage.

Joel Meares, writing in The Guardian (Jun 27), showed a classic sentiment of legal misreading: “What the Doma ruling means: we’re free to feel normal about love.”  While the Meares case is heartfelt – wanting to live together with his partner, deemed “impossible” prior to the ruling – the description is one of outcome.

Certainly, outcomes do matter.  According to the Williams Institute, there are 114,000 same-sex couples who are legally married, with 650,000 same-sex couples living together in the United States.  The ruling on DOMA will allow more flexibility for single-sex couples to adjust their finances, take out a more equitable regime of health insurance, file joint tax returns and receive social security.

In states which recognise their unions, couples will be able to access some 1,000 federal benefits (New York Times, Jun 26).  What happens in those 37 states that do not recognise the status of single sex couples remains unclear, another reason why the victory for single-sex couples is not so much Pyrrhic as vague.

As Tara Siegel Bernard of the New York Times explains, “federal agencies generally defer to the states to determine a couple’s marital status.”  Brian Moulton, legal director at the Human Rights Campaign, puts the case powerfully that, “Unless the administration changes its practices and rules – and in a couple of areas, unless the law changes – then couples residing in a nonmarriage-equality state may not be recognised for some federal programs.”

What the decision potentially does is create a different tier of privileges among those in same-sex unions.  The law will continue to adjust the habit of its subjects; for one thing, travel will have to be undertaken to the 13 states or the District of Columbia to get married.  Then there is the testy issue about what happens when legally married couples move to states which do not recognise such a union.

The two decisions suggest a form of stunted judicial reasoning.  And opinions at the end of the day are not actions.  The legal declarations now made, it is up to the various government tiers in the United States to respond.  That is where the test of how viable the decisions are will rest.  One thing is at least clear and merry from the DOMA ruling: Edith Windsor, the 83-year-old widow who sought to claim an estate-tax refund after her partner’s death, will get her money back.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne. Email:




Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email:

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