Law School Professors React to Supreme Court’s Same-Sex Marriage Rulings

Harvard affiliates celebrate in Cambridge, on Supreme Court building steps

Waiting for the Same-Sex Marriage Rulings
Delphine Rodrik

In the wake of a pair of Supreme Court decisions on two major same-sex marriage cases issued Wednesday, Harvard Law School professors praised the Justices for the landmark rulings that largely aligned with legal experts’ predictions.

“Nothing better could have emerged from the present Court,” Law School professor Laurence H. Tribe '62 wrote of the two decisions in an email. “This was a predictable but nonetheless significant victory.”

In United States v. Windsor, a five-Justice majority led by Anthony M. Kennedy struck down the Defense of Marriage Act, the national law defining marriage as a union between a man and a woman. Although the Court did not establish a constitutional right to same-sex marriage, its decision extends federal benefits to married couples who reside in one of the dozen states that currently recognize same-sex marriage.

“DOMA writes inequality into the entire United States Code,” wrote Kennedy, who graduated from Harvard Law School in 1961, in the decision. “DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”

Law School professor Michael J. Klarman agreed that the Justices largely acted as expected. “They did what most people predicted they would do based on what was said in the oral arguments,” he said. “But if you step back and look at it from the broader perspective, it’s an extraordinary thing that the Supreme Court ruled that the Defense of Marriage Act was unconstitutional.”

Klarman said that Wednesday’s decisions signify tremendous progress for gay rights advocates, particularly given the widespread support for DOMA when Congress passed the legislation in 1996. “It’s a really big shift in people’s understanding of the Constitution and a reflection of a big shift in people’s attitudes towards same-sex marriage,” he said.

The majority opinion in the DOMA decision was not rooted in the issue of standing addressed in an amicus brief submitted by Law School professor Vicki C. Jackson in January. The Justices appointed Jackson to write the brief, which argued that the Court lacks jurisdiction to hear the dispute.

The Justices devoted several pages of the opinion to addressing Jackson’s points, though ultimately dismissing them and ruling on the merits of the DOMA case. Jackson is currently travelling and was unavailable for comment on the opinions.

On Wednesday, the Court also issued a decision on Hollingsworth v. Perry, a case that addressed the constitutionality of Proposition 8, a California ban on same-sex marriage. In another five-to-four split, the Justices ruled that supporters of the law lacked the legal right to defend Proposition 8 in court, and sent the case back to the appellate court with instructions that it should be dismissed on procedural grounds.

In its ruling the Court did not make any sweeping decisions concerning same-sex marriage that would apply to all states. Nevertheless, Klarman predicted that the appellate court would comply with the Supreme Court’s instructions, effectively validating a lower court’s earlier ruling that Proposition 8 is unconstitutional in California.

“It’s likely that same-sex marriage will be legal in California and that it will take place in large numbers,” he said, adding that the “implications for any other state are nil.”

For his part, Tribe wrote that the implications of the Proposition 8 ruling remain unclear for the state of California. He added that nationally “the decision has no implications beyond the procedural conclusion that private parties generally lack standing to challenge rulings striking down statewide initiatives or referenda.”

In both decisions, Tribe noted a shift in the Justices’ tone on Wednesday from previous rulings, including Lawrence v. Texas, a sodomy case decided exactly a decade earlier.

“To me, the most striking thing—apart, of course, from the happy outcome—was the absence, anywhere except perhaps in Justice Scalia’s intemperate dissent in Windsor, of the kind of anti-gay rhetoric that peppered the pages of the United States Reports on prior occasions,” Tribe wrote.

Although Klarman noted that the Justices’ rulings made no promises or guarantees of what the Court might do in the future, Klarman said the opinions laid the groundwork for future cases that could lead to the establishment of a constitutional right to same-sex marriage.

“As public opinion continues to evolve, I think there will continue to be a higher probability that the Court will recognize such a right,” Klarman said, noting that the particular Justices who serve on the bench would also greatly influence any future rulings. “There is certainly a lot of ammunition within the opinion for people who want to bring lawsuits against state bans on same-sex marriage.”

On Wednesday, other Harvard affiliates celebrated the Justices’ rulings as a significant step forward for same-sex marriage advocates in gatherings held in places ranging from House common rooms in Cambridge to the steps of the Supreme Court building itself.

Harvard's first director of BGLTQ student life, Vanidy "Van" Bailey, learned of Wednesday’s decisions in the Quincy House Junior Common Room with members and supporters of Queer Students and Allies.

“To hear the cheers and the intense discussion was moving and inspiring,” Bailey wrote in an email, adding that Wednesday marked “one of the most historic days in the BGLTQ Rights Movement.”

—Staff writer Dev A. Patel can be reached at devpatel@college.harvard.edu. Follow him on Twitter @dev_a_patel.

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