It’s unlikely that the Founding Fathers ever envisioned the Fifth Amendment as a vehicle for permitting gay marriage.
After all, most of the original 13 states banned interracial marriages, a prohibition that the Supreme Court brought to an end in 1967. Since then, some states have widened the legal definition of marriage—with a dozen having now legalized same-sex unions.
Using the Bill of Rights and its promise of “due process,” the Supreme Court ruled on Wednesday in a five to four decision that the federal government must recognize gay marriages.
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In the United States versus Windsor, the court effectively struck down the 1996 Defense of Marriage Act. The case stemmed from a lesbian couple from New York, Edith Windsor and Thea Spyer, who married in Canada in 2007. When Spyer died two years later, her widow was required to pay $363,000 in federal estate taxes. Had the federal government accepted the marriage as legal, Windsor would have faced no federal estate taxes.
The Fifth Amendment states that people cannot “be deprived of life, liberty, or property, without due process of law,” a requirement that five Supreme Court justices—Anthony Kennedy, Stephen Breyer, Ruth Bader Ginsberg, Elena Kagan, and Sonia Sotomayor—said the tax bill violated.
Kennedy wrote the majority opinion that the Defense of Marriage Act “forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law.” This basic contradiction violates protections that states extended to these couples and places them in “an unstable position of being in a second-tier marriage.”
“Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment,” Kennedy wrote.
It was a unique appeal to federalism by the court, one that upset Justice Antonin Scalia—an avowed originalist who believes the Constitution should be interpreted based on its Founders intentions—as “rootless and confusing.” It pitted the principles of the Fifth Amendment against Scalia’s cultural argument.
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Scalia claimed in his dissent that the Defense of Marriage Act merely codified “an aspect of marriage that had been unquestioned in our society for most of its existence.” He attacked the majority opinion for “adjudging” opponents of gay marriage as “enemies of the human race.”
Same-sex couples can now file joint tax returns and collect Social Security survivor benefits, among other doors opened to them that were until very recently nailed shut.
In a separate ruling announced Wednesday, the court also cleared the way for California to approve of gay marriage. It found five to four in Hollingsworth versus Perry that supporters of the Proposition 8 banning same-sex unions do not have the standing to defend the law in court challenges. The California government declined to defend the 2008 amendment to its state constitution.
These are crucial but incomplete victories for supporters of gay marriage. David Boies, an attorney involved in both cases, said after the opinions were released that the Supreme Court “brings us that much closer to true equality.”
According to a recent poll by Pew Research Center, 72 percent of the country—including 70 percent of white evangelical Protestants—sees same-sex marriage as inevitable.
But under the court rulings, states that forbid these unions are not required to rewrite their laws, meaning that the political battle will continue.
“We look forward to fighting on the ground to protect families in the other 38 states,” said Arshad Hasan, executive director of the progressive group Democracy for America. “Having married the man I love just three weeks ago, I know first hand how much it means to take those vows.”
