Today’s Supreme Court decision on same-sex marriage is a great result, but based on dubious reasoning. It is undoubtedly a momentous occasion for gays and lesbians around the nation. In a comparatively short time, they have moved from being a widely despised minority whose intimate relationships were criminalized in many states, to full marriage equality around the country.
For gays and lesbians seeking the right to marry and for many of us who have supported their cause, the result in today’s case matters more than the reasoning. But the Court’s legal reasoning also deserves attention, both because it is important in its own right, and because it establishes a precedent for future cases. Unfortunately, much of Justice Anthony Kennedy’s majority opinion is based on dubious and sometimes incoherent logic.
Gay rights advocates have advanced several different rationales for a constitutional right to same-sex marriage. In my view, the strongest is that laws banning same-sex marriage discriminate on the basis of sex, much like laws banning interracial marriage discriminate on the basis of race – a position defended in an amicus brief I coauthored with Prof. Andrew Koppelman. But some of the other rationales for a right to same-sex marriage are also plausible, particularly the theory that laws banning it engage in unconstitutional discrimination against gays and lesbians.
Unfortunately, Justice Kennedy’s majority opinion doesn’t clearly endorse any of the various arguments previously advanced for a right to same-sex marriage, even as it to some degree nods at all of them. The result is a far from satisfying majority opinion.