Bazelon: DOMA opinion is a historic, thrilling, full-throated stand for equality

This artist rendering shows Supreme Court Justices from

This artist rendering shows Supreme Court Justices from left, Sonia Sotomayor, Stephen Breyer, Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Samuel A. Alito, and Elena Kagan inside Supreme Court in Washington. (June 25, 2012) (Credit: AP)

It's a rare moment when a court can write a stream of words and make the lives of many thousands of people instantly better. That's what five Supreme Court justices have done this week by striking down the Defense of Marriage Act. Their historic, tremendously exciting and full-throated stand for equality will bring federal benefits raining down on legally married gay couples in a dozen states - and resonate far beyond even that important change.

Justice Anthony Kennedy wrote the majority opinion in this 5-4 case, joined by Breyer, Ginsburg, Kagan and Sotomayor. You could say that he has been writing his way to this day since 1996, when he ruled against a Colorado law that took away rights for gay people granted by a local ordinance. Kennedy established a principle then that was key to his ruling Wednesday: The government may not single out a group it disapproves of for injurious treatment.

In 2003 - exactly 10 years ago - Kennedy, again joined by the court's liberals, struck down state laws that criminalize sodomy in the name of liberty and personal dignity. This week he used the word "dignity" nine times, by my count, this time joining it to the concept of liberty the court has now embraced.


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The constitutional flaw in DOMA, Kennedy wrote, was that its enactment and text demonstrate "interference with the equal dignity of same-sex marriages." This dignity was conferred by states like New York (now numbering 12), which recognize same-sex marriage. DOMA stomped into this domain of domestic relations "to identify a subset of state-sanctioned marriages and make them unequal," Kennedy wrote.

"The principal purpose is to impose inequality, not for other reasons like governmental efficiency." Then there is this classic Kennedy line: "Responsibilities, as well as rights, enhance the dignity and integrity of the person."

And the opinion's ringing conclusion: "The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."

Kennedy could have put most of the weight of striking down DOMA on the states' "exercise of their sovereign power," in the domain of domestic relations. That's in the opinion, but it's secondary. That fulfills the hopes of the gay rights lawyers who chose this case with such care, as the first step on the path to a constitutional right to gay marriage in every state.

This case is about federalism but it is also about equal rights.

Bazelon is a Slate senior editor and writes about law, family, and kids.

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