Epstein on SCOTUS Decisions on DOMA and Prop 8 (#UChiLawSCt)

Supreme Gay Fumble
Richard A. Epstein
Defining Ideas
July 2, 2013

The Supreme Court’s twin decisions in United States v. Windsor (DOMA) and Hollingsworth v. Perry (Proposition 8) have clearly altered the terms of the debate over gay marriage in the United States. Along the way, they have shown the serious weaknesses in the Supreme Court’s result-oriented approach to constitutional law.

Windsor addressed the two key provisions of the Defense of Marriage Act, passed in 1996 with broad majorities (85 votes in the Senate and 342 in the House). Section 2 provides that no state should be required to give any legal effect to a same-sex marriage concluded in a different state. Section 3, struck down in Windsor, held that for all matters of federal law “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

California’s Proposition 8, passed in 2008 to overrule the California Supreme Court, which overturned the ban on same-sex marriage in California, is even shorter: “Only marriage between a man and a woman is valid or recognized in California.”

The Supreme Court’s decisions transformed the de