WASHINGTON — With throngs of rainbow-clad supporters and curious onlookers just yards from the U.S. Supreme Court’s marble columns, the nation’s highest judicial body handed down decisions Wednesday in two anxiously awaited cases involving same-sex marriage.
In a 5 to 4 decision, the court ruled the federal Defense of Marriage Act unconstitutional, while the justices refrained from ruling on the constitutionality of state marriage bans for same-sex couples.
Drafting the majority opinion in United States v. Windsor, Justice Anthony Kennedy wrote that DOMA — which had federally defined marriage as between a man and a woman — deemed state-recognized same sex marriages as “second class” under federal law.
“By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment,” Kennedy wrote.
Justice Antonin Scalia wrote a lengthy dissent, upbraiding the court for acting outside their jurisdiction. Summarizing his dissent in the courtroom, the conservative justice said the majority opinion pawned the Framers’ vision for “the court’s moment in the spotlight.”
Scalia wrote that the majority opinion paints those opposed to the universal marriage equality as “the enemy of human decency,” whereas, in reality the truth is much more complicated as judges and policymakers grapple with the implications of having no federal definition of marriage.
“The court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat,” he wrote. “We owed both of them better.”
In a second case, the court ruled 5 to 4 that the defendants in Hollingsworth v. Perry had no standing to bring their case before the Supreme Court after a decision in a lower court struck down California’s same-sex marriage ban, a voter initiative known as Proposition 8. While the court did not rule on the constitutionality of the ban, it allowed the lower court’s ruling to stand, thus allowing same-sex marriages to resume in California.
As a result, the decision leaves state marriage bans, including the one in Michigan, unaffected.
Though the court failed to expand full marriage rights to same-sex couples across the nation, supporters outside the court heralded Wednesday’s rulings as victories, despite their limitations.
Spilling onto the sidewalk and pushing up the court’s white marbled steps, supporters held neon-colored signs trumpeting slogans such as “We are you,” and “Marry who you love.” Holding small blue flags marked with the movement’s symbolic equal sign, attendees called for equality now, punctuated by bursts of patriotic songs.
LSA sophomore Ashley Burnside was outside the court when news of the decisions spread through the gathered crowd, numbering in the hundreds.
“When people look back on this moment, the end of DOMA is going to be one of the biggest milestones,” Burnside said, noting cameras and iPhones that danced around her as people attempted to capture and share the moment on film.
She said the decisions are not only significant in the fight for marriage equality, but also have the opportunity to spark new conversations about LGBT rights.
Citing other social movements such as civil rights for women and people of color, Burnside said attention at the federal level has the ability to kickstart change. She hopes Wednesday’s energy will not only invigorate a national discussion, but further stimulate campus action as well in areas such as inclusion and gender neutral accessibility.
LSA senior Russ Hayes, chair of the University’s chapter of College Republicans, wrote in a statement that many members of the organization were pleased with the outcome of the case — in contrast to many members of the national party. A Pew research study from March showed that only 25 percent of Republicans support gay marriage; however, among Republicans aged 18-29, that number was up to 39 percent.
“Personally, I’m happy with the results, as are a lot of folks I’ve spoken to in the College Republicans,” Hayes wrote. “The DOMA ruling reaffirms the importance of federalism, a core tenet of the Republican party. I’m also incredibly proud to be a member of an organization that welcomes a wide variety of opinions on issues like this, and one that embraces constructive dialogue on campus.”
The University’s chapter of the College Democrats was unavailable for comment.
Dozens of college students — many of whom skipped an internship, class or college orientation to witness the moment in person — cited the decisions as both a marker of progress and a rallying call for further efforts in securing marriage equality.
Similar sentiments were echoed by politicians such as U.S. Senator Carl Levin (D-Mich), who said the decisions will ensure that the constitutional rights of millions of Americans are protected.
“Today’s Supreme Court rulings are victories for equality and for simple human dignity,” Levin wrote in a statement. “I’m hopeful that our nation’s centuries-long march toward equality will continue to move forward.”
Beyond the Beltway, speakers and supporters gathered in Kerrytown’s Braun Court to laud the merits of the court’s decisions.
Sandi Smith, president of the Jim Toy Community Center, an organization supporting LGBT citizens in Washtenaw County, helped facilitate the rally. She has been with her partner for 18 years and said she will continue to work towards improving rights for Michigan’s LGBT community.
Smith said the rulings provided a basis to continue the fight for equality in Michigan, citing the number of advantages, such as domestic partner benefits, that were not provided to members of the LGBTQ community.
“We have (a) good foundation to work from,” She said. “There are all kinds of things we need to do. Marriage is just one of the pillars … today we celebrate. Tomorrow we get back to work.”
Rep. Jeff Irwin (D-Ann Arbor), who appeared at Wednesday evening’s rally to applaud the promise and historical nature of the decisions, told The Michigan Daily he plans to pursue every avenue to realize marriage equality in Michigan.
While the decision in Hollingsworth v. Perry has opened the door to another similar case next session, Irwin has already introduced a package of bills, along with other state representatives, that could negate Michigan’s same-sex marriage ban.
Though Irwin hesitated to predict if a completed law will arrive quickly, he said he will continue to join gay rights advocates and like-minded elected officials in trumpeting the cause. Irwin also noted a majority of Michigan’s population now supports gay marriage, compared to the 59 percent of voters who passed the same sex marriage ban, Proposition 4, in 2004.
While swiftly ushering this legislation though Lansing will remain a challenge, Irwin said he encourages citizens continue to communicate with their representatives as he and his colleagues work to bring more conservative officials to the table. A voter referendum is another option Irwin said has not been ruled out.
Moreover, a U.S. district court will hear a case this fall concerning a Hazel Park couple who are challenging the constitutionality of the state’s ban. Irwin said what happens in that case could overturn Michigan’s Proposition 4.
Law School Prof. Richard Primus, an expert in constitutional law, said the Proposition 8 ruling could also foreshadow the outcome of a case involving another Michigan voter referendum, one more popularly known for addressing affirmative action — Schuette v. Coalition to Defend Affirmative Action.
While the case concerns the legality of Michigan’s ban on affirmative action, it deals more directly with the power of popular referendum.
Proposal 2 — which banned affirmative action — was adopted with 58 percent support in the 2006 election. In 2012, the Sixth Circuit Court sitting en banc ruled in favor of the Coalition to Defend Affirmative Action’s challenge to the referendum on the grounds that it violated the equal protection clause of the 14th Amendment.
Justice Anthony Kennedy — the possible swing vote in Schuette — dissented in Hollingsworth Wednesday, indicating his strong respect for the power of the popular referendum. If he maintains a similar stance in Schuette and upholds the power of referendum, it is nearly impossible for the ban on affirmative action to be overturned by the court.
The University is expected to file an amicus curiae brief with the court later this year in support of the ban’s invalidation. Fisher v. University of Texas, another affirmative action case decided on Monday , is unlikely to have an effect on Schuette.
“Fisher probably doesn’t have direct implications for Schuette,” Primus said. “The Prop 8 case (Hollingsworth v. Perry) could. In the Prop 8 case, Justice Kennedy, in his dissent, takes a very strong position in favor of the dignity of referenda. The question in Schuette is about what can be done by referendum. If Justice Kennedy has a very approbative view of referenda, it would be difficult to imagine the Supreme Court striking down the referendum in Schuette.”
In Windsor, Primus said the DOMA ruling was generally regarded by the legal community as the most likely outcome for the case. While the court stopped well short of mandating that gay married couples be granted legal benefits in all states, Primus said that the court has laid the groundwork for a more encompassing ruling in the future.
He compared the current movement for gay marriage to the Civil Rights Movement of the ’50s and ’60s. While the court ordered racial integration of public education systems in 1954, it waited 13 years before ruling in Loving v. Virginia that states had to grant racially mixed couples marriage licenses.
“A marriage ruling would have been even more inflammatory than the desegregation ruling was, and they wanted to give the country time to adjust before taking the principle where it logically led,” Primus said.
“If there is going to be a case where the justices say, ‘by the same logic, the Constitution requires same-sex marriage to be permitted everywhere,’ they may want to wait and give people time to adjust before getting there.”
While public opinion has swung in favor of gay marriage in recent years, the justices may again use a waiting period before ruling decisively on the issue.
Initially, Primus said many leaders of the gay rights movement argued against bringing a suit in federal court against Proposition 8, given tepid public support for gay marriage when the case was first filed in 2009.
The rulings in two the cases on Wednesday may partially be attributed to the public opinion shift that has occurred in the past two years — and as Primus sees it — a better outcome than was thought possible in 2009.
And for the supporters gathered in Washington, Ann Arbor and across the nation, Wednesday’s rulings are one more string in a line of votes, legislation and cases to come.
Correction appended: A previous version of this article misstated how public opinion may have affected the outcome of United States v. Windsor.