For centuries, courts, legislatures, and police have shared in the construction of sex. While many on both the left and the right want government to stay out of the bedroom (or at least some bedrooms), the truth is that government is always going to be there. The very existence of a private space for living and loving is the product of property relations, and property relations are the product of public power. Hollingsworth v. Perry and United States v. Windsor—the two same-sex marriage cases argued before the Supreme Court last week—show just how intimately sex and public power are bound together.
In Perry, supporters of Proposition 8 are defending the California ballot initiative’s definition of marriage as the union of one man and one woman. In Windsor, the leadership of the House of Representatives is defending the Defense of Marriage Act, a federal statute that limits the provision of federal marriage benefits to opposite-sex couples. Lower federal courts have already struck down both laws, offering several competing theories as to why they are invalid. The strongest of these theories—endorsed by many advocates of same-sex marriage—is that government action that bars gays and lesbians from the legal status of marriage and its attendant benefits violates their constitutional rights to equal protection of the law and to marriage itself.
The language of “violation” encourages us to think about individual rights in defensive terms—as shields that protect us from government action. But the right to marry, like almost any right, is better understood positively, in terms of recognition and distribution. Both advocates and opponents of same-sex marriage demand respect and support from their governments. Advocates want individual states and the nation as a whole to extend the status and benefits of civil marriage to same-sex unions. Opponents want state and federal governments to continue to differentiate between opposite-sex and same-sex couples, offering one status and set of benefits to one group, and a different status and set of benefits (or none at all) to the other.
Opponents of same-sex marriage understand the expressive and distributive character of the struggle better than advocates who argue that legalization should be of no concern to those with personal objections to the practice. Legalization would implicate all citizens in a public commitment to respect and support same-sex couples (just as refusal to recognize same-sex marriage implicates all citizens in the choice to respect and support only opposite-sex couples). The coercive aspect of legalization is a feature, not a bug: change in the law will gradually change the way Americans understand their moral obligations to gay and lesbian fellow citizens, and the way the nation thinks about sexuality altogether. There is nothing special about same-sex marriage in this regard. When a democratic polity requires equal pay for equal work, or goes to war, or ends the project of desegregation, or does or does not prosecute a rape, all of its citizens are bound up with and transformed by these actions.
Given that Perry (which involves a state law) and Windsor (which involves a federal law) are as much about the power of government to transform citizens as they are about citizens’ rights “against” the government, the interaction of state and federal power in these cases is particularly important. During the Windsor oral arguments last Wednesday, Justice Anthony Kennedy asked “whether or not the Federal government . . . has the authority to regulate marriage” at all. As Kennedy’s question implied, one way to invalidate the Defense of Marriage Act without creating a constitutional right to same-sex marriage would be to find that the regulation of marriage falls under “the traditional authority and prerogative of the States” and is beyond the purview of the federal government.
Over the years, Kennedy has gained a pro-gay-rights reputation, and he is the likely swing vote in the same-sex marriage cases. In 1996 and 2003, the Justice authored the majority opinions in Lawrence v. Texas and Romer v. Evans, which struck down a Texas statute criminalizing sodomy and Colorado’s attempt to withhold antidiscrimination protections from gays and lesbians. In these seminal decisions, Kennedy elevated individual dignity and liberty—as he interpreted those concepts—over the traditional moral views of local majorities. But Kennedy also has great affection for antique forms of private order, and he made it clear during oral arguments in Perry and Windsor that he is uncomfortable with wading into “uncharted waters” by normalizing same-sex marriage. The Justice’s strong support for states’ rights—the idea that there are many areas of life that may only be regulated by states, not the federal government—could offer him a third way.
By holding that the federal government does not have the authority to establish any uniform definition of marriage, Kennedy could lead the Court in striking down DOMA’s restrictive definition without constitutionalizing same-sex marriage. Such a states’ rights decision in Windsor would, however, make it especially awkward for the Court in Perry to invalidate Proposition 8—a state regulation of marriage. Thus, many legal commentators have suggested that the Court might strike down DOMA out of deference to states’ rights, while avoiding a decision in Perry by dismissing the case on procedural grounds. This outcome would mean that one of the lower court decisions invalidating Proposition 8 would determine current California law. Same-sex marriage would then be legal in the state, but the Supreme Court would avoid articulating any more general constitutional principle.
A small victory for advocates of same-sex marriage, this states’ rights resolution of Perry and Windsor would cause a welter of problems for the federal government. No one disputes that marriage law has traditionally been a state matter—a fact that has enabled same-sex marriage supporters to pursue a piecemeal legalization strategy, focusing on states relatively sympathetic to their cause. But the reality of our national economy means that the federal government cannot avoid making law about marriage—whether the issue is taxing and spending programs targeted at married couples, or spousal benefits for federal employees. If DOMA or its opposite—a federal law promising to treat all same-sex unions as marriages, regardless of their status under state law—didn’t exist, it is not clear how the federal government would deal with the patchwork definition of marriage that currently obtains at the state level. For example, if a gay couple marries in a state where same-sex marriage is legal, and then takes up residence in a state that doesn’t recognize the marriage for purposes of state taxes, how should the federal government treat the couple?
Such practical difficulties may make a states’ rights invalidation of DOMA less likely than many court-watchers suspect. But a decision that weakens the federal government while striking down a discriminatory law would be vintage Kennedy, marrying the Justice’s professed concern for the dignity of all Americans with his distaste for centralized power. In the Affordable Care Act case decided last term, Kennedy tried to resist national efforts to encroach on a sphere of life he considered too intimate for federal management—health care. In Windsor, the Justice again confronts a federal law that interferes with intimacy, this time in a patently discriminatory manner.
There is something appealing—even romantic—about the Justice’s legal vision, demarcating as it does intimate worlds and dignified individuals threatened by a distant bureaucracy. But—at least since the Civil War—Americans are citizens of the nation first, and creatures of a national legal culture. For better and worse, in times of war and peace, this culture shapes their bodies and minds, their moral views and life choices. The problem with DOMA is not that it is a powerful regulation of sexuality, but that it is an unfair one.
In questioning Solicitor General Donald Verrilli about the federal government’s authority to pass DOMA, Chief Justice Roberts recognized the complex relationship between sex and public power: “you agree that Congress could go the other way, right? Congress could pass a new law today that says, We will give Federal benefits. When we say ‘marriage’ in Federal law, we mean committed same-sex couples as well, and that could apply across the board.” Verrilli replied in the affirmative, and someday soon, the nation—whether through Congress or the Court—will hopefully “go the other way.”