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VILLANOVA LAW REVIEW ONLINE: TOLLE LEGE CITE: 59 VILL. L. REV. TOLLE LEGE 1(2013)
SOMETHING TO (LEX LOCI) CELEBRATIONIS?
MEG PENROSE*
O N June 26, 2013, the United States Supreme Court issued two
opinions relating to same-sex marriage. 1 In neither case did the Court
issue the revolutionary decision granting a federal constitutional right to
marriage.2 But, in the only case where the Court reached the merits of the
same-sex marriage controversy, United States v. Windsor,3 an argument can be
made that the Court planted the seeds for enshrining a future constitutional right
to marriage based either on equal protection or substantive due process
grounds.4 Actually, the better argument might be that Windsor is the
germinated outgrowth of the Court's previous jurisprudence relating to gay
rights.5 Under Justice Scalia's prediction-and, to be fair, he has accurately
and presciently forecasted the trajectory of this issue6-full-fledged gay
marriage is but a constitutional season or two away.7
* Professor, Texas A&M University School of Law. Professor Penrose teaches
courses in Constitutional Law, Federal Criminal Procedure, Federal Civil Procedure, Gender
Discrimination, and First Amendment. Professor Penrose would like to thank her colleagues
who improved this essay during a faculty speaker presentation at Texas A&M University
School of Law in August, 2013. Professor Penrose also recognizes the courageous same-sex
couples whose legal marriages have brought this issue to the forefront.
1. See generally United States v. Windsor, 133 S. Ct. 2675 (2013); Hollingsworth v.
Perry, 133 S. Ct. 2652 (2013).
2. The Court returned Perry to the lower court, essentially reinstating the federal
district court's opinion, based on the majority's finding that the Court lacked standing. It is
noteworthy that both gay marriage cases provided lengthy discussions relating to standing and
justiciability. Avoiding the merits of such controversial and heated issues is not, however,
foreign to the Court. See, e.g., DeFunis v. Odegaard, 416 U.S. 312, 319-20 (1974)
(dismissing an educational affirmative action case on mootness grounds).
3. 133 S. Ct. 2675 (2013).
4. See id. at 2694 (noting that unions treated as second-class marriages for purposes of
federal law raise a most serious question under the Constitution's Fifth Amendment).
Shortly thereafter, the Court notes that DOMA writes inequality into the entire United States
Code and has the principal effect to identify a subset of state-sanctioned marriages and
make them unequal. Id.
5. The progression toward legalizing marriage, at the Supreme Court level, had
previously begun first with overturning the criminality of intimate acts between consenting
individuals. See generally McLaughlin v. Florida, 379 U.S. 184 (1964) (overturning laws that
prohibited intimate relations between interracial couples). Then, once the underlying intimate
act is found constitutionally protected, the larger relationship (marriage) is given
constitutional protection. See generally Loving v. Virginia, 388 U.S. 1 (1967) (striking down
anti-miscegenation laws as unconstitutional).
6. See Lawrence v. Texas, 539 U.S. 558, 586 (2003) (Scalia, J., dissenting). Justice
Scalia predicted that Lawrence's reasoning leaves on pretty shaky grounds state laws limiting
marriage to opposite-sex couples. Id. at 601. Justice Scalia returned to the gay marriage
issue a few pages later when he admonished, [a]t the end of its opinion-after having laid
waste the foundations of our rational-basis jurisprudence-the Court says that the present case
'does not involve whether the government must give formal recognition to any relationship
that homosexual persons seek to enter.' Do not believe it. Id. at 604.
7. See Windsor, 133 S. Ct. at 2705 (Scalia, J., dissenting) (predicting that the second
state-law shoe finding all same-sex marriage prohibitions unconstitutional will be dropped
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VILLANOVA LAw RF.vww ONLINE- TOLLE LF.c.F.
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