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Constitutional law expert’s opinion on Supreme Court’s same-sex marriage decisions

Suzanna Sherry portrait
Suzanna Sherry (Courtesy of Vanderbilt Law School)

Historic gains were made by supporters of same sex marriage on Wednesday after the Supreme Court ruled in a 5-4 decision to overturn the federal Defense of Marriage Act. That 1996 act denied federal benefits to same-sex couples who were legally married in the states where they lived.

In a second 5-4 decision, the court declined to rule on California’s Proposition 8, which defined marriage as “between one man and one woman.”

One of the nation’s top scholars on constitutional law, Vanderbilt law school professor Suzanna Sherry, the Herman O. Loewenstein Professor of Law and Harvie Branscomb Distinguished University Professor, wrote the following opinion piece for The Washington Post website right after the decision came down. You can read the full piece below.

The Pariah Principle

By Suzanna Sherry, Vanderbilt University Law School

Windsor v. United States makes history – in more ways than one – but it doesn’t make new law. The principle announced in Windsor had its origins in the adoption of the Fourteenth Amendment in 1866, saw daylight as the Court began rejecting Jim Crow laws during mid-twentieth century, and came to fruition in 1996 in Romer v. Evans. That principle underlies all of the Equal Protection cases before and since: The government cannot brand any group of people as pariahs or outcasts.

Hidden behind the legal niceties of tiers of scrutiny and other Equal Protection doctrines is the basic proposition relied on by Justice Kennedy in Romer as well as in today’s majority opinion in Windsor. “The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” Congress – and by extension the states – cannot purposely and deliberately brand any group with the stigma of inferiority, purely out of animus or disapproval. It cannot make pariahs out of law-abiding citizens for no other reason than to demean them. That is what DOMA did, and that is why DOMA is unconstitutional.

And the pariah principle tells us something else as well: It tells us how Hollingsworth v. Perry would have come out had the Court reached the merits in that case. The Ninth Circuit, in affirming the district court’s invalidation of Prop 8, did not rely on the district court’s careful and thorough analysis of a constitutional right to marry. Instead, the court found simply that “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians” and to classify them as inferior. Relying on Romer, it held that Prop 8 was “enacted with only the constitutionally illegitimate basis of ‘animus toward the class it affects.’”

If the Justices who joined Justice Kennedy’s Windsor opinion reached the merits in Perry, they would have agreed with the Ninth Circuit. Like DOMA, Prop 8’s sole purpose and effect was to demean and stigmatize, to make pariahs out of those in same-sex marriages.

The pariah principle, reiterated and given pride of place by the Windsor majority, should now govern all challenges to same-sex marriage. Like Jim Crow laws before them, same-sex marriage laws will be invalidated one by one as courts recognize and apply the core principle of the Equal Protection Clause: The government cannot brand any group as unworthy of equal respect and dignity.

Sherry’s op-ed appeared on the Washington Post website on Wed., June 26, 2013.