A Michigan lawsuit filed over lesbian adoption could be the first case to test the impact of the Supreme Court’s recent ruling in United States v. Windsor, which struck down the federal Defense of Marriage Act.
The Michigan suit was brought by April DeBoer and Jayne Rowse, a cohabitating couple who want to adopt each other’s children. In refusing to dismiss the case last week, a judge wrote that, “plaintiffs are prepared to claim Windsor as their own…And why shouldn’t they? The Supreme Court has just invalidated a federal statute on equal protection grounds because it ‘place[d] same-sex couples in an unstable position of being in a second-tier marriage.’”
In Windsor, the Supreme Court found unconstitutional the federal government’s refusal to recognize gay marriages that states had certified. On one hand, conservatives might be encouraged: Kennedy’s entire ruling drips with talk of decentralized government, states’ rights, and the lawful authority for the people of each state to determine the marriage question for themselves. But many fear that the logic in Kennedy’s majority opinion paves the way for a sweeping decision to mandate gay marriage recognition in all 50 states. And that is exactly what the plaintiffs behind the Michigan case are aiming for.
For all of Kennedy’s rhetoric about federalism (“By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States.”), his argument ultimately undermines itself. The ruling argues that traditional marriage laws “humiliate” gays and deem their marriages “less worthy.” Kennedy writes in his opinion, “DOMA violates basic due process and equal protection principles applicable to the Federal Government.” Since due process and equal protection requirements also apply to the states, how are state laws defending traditional marriage not guilty of the same?
Further, Kennedy’s language makes clear that he finds it morally reprehensible to deny marriage to same-sex couples: “DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States,” he writes.
It could well be argued that when the Supreme Court struck down the constitutionality of DOMA, it established the long-sought “constitutional right to marriage.” There is little real question how this will play out in the end. As Scalia writes in his Windsor dissent, “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”
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