The last few days have been dominated by the news emanating from the Supreme Court: the Defense of Marriage Act (“DOMA” for short) is now almost entirely a matter of history.  Depending on which side of the same-sex marriage issue one finds him or herself, this development may have come as either exciting and liberating or frustrating and depressing.

But lost in the reactions from both sides has been little, if any, discussion about the soundness of the result from a legal standard.  And by that, I mean, mainstream coverage of the decision has not focused on this issue.  Supporters of Justice Kennedy’s opinion seem to have forgotten their criticism of Justice Roberts just a few days earlier when it came to the fate of the Voting Rights Act: that the court, in an effort to pursue a political agenda, may have acted in an activist fashion.  Similarly, opponents of the decision in Windsor have focused on the cultural consequences of the seemingly inevitable march toward same-sex marriage.

Yet careful examination of Kennedy’s opinion reveals significant shortcomings from a logical, precedential, and consequential basis.  Justice Scalia, whose hyperbole in less significant cases can result in a boy-who-cried-wolf-effect for those that actually reach the public eye, identified many of these deficiencies in his dissenting opinion.   Unfortunately for Justice Scalia, no one seems to care given some of his past histrionics and the inherent attractiveness of the “equal liberty” narrative put forth by Justice Kennedy.

But what of Justice Kennedy’s opinion?  Will it withstand the test of time and be looked upon by the majority as favorable?  Probably yes.  But can it withstand the test of logic and precedent?  That might be another story.  Here are some observations that demand more attention:

1. Justice Kennedy, despite not squarely relying on due process rights, equal protection principles, or federalism, managed to fuse parts of all three to nullify Section 3 of DOMA.  What exactly, is the basis of his opinion?

Kennedy’s opinion is remarkable in the sense that it manages to strike down a provision of a federal law without claiming that it goes beyond the enumerated powers in the Constitution, denies substantive due process, violates equal protection, or undermines federalism entirely.  Unlike most cases involving the deprivation of “rights,” which rely on historical analysis to determine whether a right is foundational, the opinion combines concerns about several constitutional values to conclude that DOMA is unconstitutional.  The inherent ambiguity in the opinion that results is startling for future cases.  Only time will tell which basis is the favored one, especially given that the opinion also seems to favor a state’s right to retain the traditional definition of marriage (which Justice Roberts keenly pointed out).  But if substantive due process or equal protection is doing the work, why didn’t Justice Kennedy just say so?

2. The rise of “animus” as a legitimate reason, itself, to strike down a law.

Justice Kennedy, unwilling to ground the invalidity of DOMA in the Due Process Clause or through equal protection principles (as incorporated in the 5th Amendment), points to illegitimate motives behind DOMA as sufficient.  This reasoning is remarkable for a few reasons.  First, Kennedy somehow decided that DOMA was motivated entirely by animus against same-sex marriage and the states that allow it despite the fact that not one state, at the time of DOMA’s passage, recognized the practice.  Is it really possible to conclude from the legislative history that Congress-with more than 500 members-did not have any reasons other than this supposed animus, such as uniformity in the enforcement of other federal statutes?  Additionally, and much to the dismay of opponents of the decision, the opinion essentially labels anyone who holds the traditional view of marriage irrational.  Although Justice Scalia’s dissent may unnecessarily amplify this concern (Scalia claims the majority considers supporters of traditional marriage enemies of the human race), the audacity of something even resembling that conclusion is troubling.  Is Kennedy actually serious when he implies that holders of the traditional view of marriage are beyond reason?

3. The notion that a state can confer a right that is inconsistent with federal law and thereby nullify the federal law, or at least subject it to more exacting review.

This principle, which basically means “nullification through the assignment of liberty” is quite remarkable when one considers American history.  Consider the antebellum South and the fight over nullification.  To some degree, wasn’t that debate mostly about whether states could pursue alternative values-the securing of certain liberties-in contravention of federal laws?  Consider that Justice Kennedy never claims that Congress did not have the power to pass DOMA and he does not clarify whether his principle extends to other contexts or is unique to marriage.  What if a state conferred a right to engage in activity that the federal code considers criminal, i.e. the usage of marijuana?  States have traditionally retained the police power, so what’s the difference?  What if a state conferred additional religious liberty to avoid the definitional requirements and mandates in the new health care law?  Why can’t the federal government–acting within its constitutional authority–choose a different way than a state?  These questions are not answered in the opinion.

4. The majority opinion finds standing in Windsor despite the fact that a) the plaintiff had already received her remedy; and b) the government was not defending the constitutionality of the law.  Interestingly, in Perry, the petitioners (Proposition 8 supporters) were in worse shape: a) they had not received a remedy (because their government refused to enforce the law) and b) the government was not defending the law, just like in Windsor. 

Admittedly, Windsor and Hollingsworth came to the Court in different procedural postures and with different backgrounds.  But the Court’s decisions regarding standing for the petitioners in each case feeds the theory that the Court is simply another political actor calculating the effects of its activities.  If the Court feels compelled to recognize the rights of one individual who has already received her remedy (Windsor), how can it deny a hearing on the merits to a class of citizens whose government has effectively vetoed the democratic process (Hollingsworth)? This question becomes more troubling when one recalls that the petitioners in Hollingsworth were actually involved in its passage rather than simply being interested citizens and that the California governmental officials that did not defend the referendum violated their state constitutional duty to do so.  Imagine the rule from the Court in a different context: would Hollingsworth deny the citizens of a state who legalized same-sex marriage by state constitutional amendment their day in court if the elected representatives of that state government refused to issue same-sex marriage licenses?  What would the Court say then?

The various opinions in Windsor and Hollingsworth will be scrutinized in the months to come.  These are just a few of the questions that need attention.