Kennedy, who will turn 77 this summer, has authored the court’s foremost defenses of gay rights. Exactly 10 years ago Wednesday, he announced the court’s decision in Lawrence v. Texas, which struck down sodomy laws that targeted homosexuals.
His decision Wednesday striking down a central part of DOMA cited the principles of state autonomy, equal protection and liberty.
“The state’s power in defining the marital relation is of central relevance in this case,” not just because of federalism, Kennedy said, but because giving homosexuals the right to marry “conferred upon them a dignity and status of immense import.”
He said the history of the act showed that it was written to convey moral disapproval of homosexuality and “a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states.”
In the end, Kennedy said, “DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment.”
Kennedy wrote that the opinion was applicable only in those states where same-sex marriage is legal.
In a withering dissent, Scalia said it took “real cheek” for the majority opinion to suggest such a limitation — because the rest of the ruling, he said, laid out a road map for how to challenge state bans on gay marriage.
“What has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it,” Scalia wrote. “I promise you this: The only thing that will ‘confine’ the court’s holding is its sense of what it can get away with.”
He said that decisions about same-sex marriage should be decided in the political arena but that the majority took that away “to buy its stolen moment in the spotlight.”
Scalia also said the court’s ruling will raise practical problems: “Imagine a pair of women who marry in Albany and then move to Alabama, which does not ‘recognize as valid any marriage of parties of the same sex.’ . . . When the couple files their next federal tax return, may it be a joint one?”
Such a case does cause a problem for the Obama administration, which is now grappling with difficult questions about how to deliver federal benefits for same-sex couples living in states that do not have legal gay marriage.
Gay activists are pressuring Obama to use his executive authority to ensure that the full range of benefits, such as the right to file federal income taxes jointly or be exempt from the marriage estate tax, be granted to married same-sex couples no matter where they live.
DOMA was passed with bipartisan majorities of Congress and signed by President Bill Clinton — who put out a statement Thursday praising its demise.