Windsor was a big decision, but it was not a decision about equality — due respect to all the Facebook users who have replaced their photos with equal signs.
That’s not a bad thing at all. A Supreme Court opinion squarely addressing the many constitutional questions about the equal protection clause (not least of them being what standard of review to use) would have gotten the court and the country into some very difficult terrain. There was no need for that in order to overturn DOMA. The opinion also does not say that marriage is a fundamental right, though it comes closer to that.
Justice Kennedy’s reasoning leaves breathing room for politics. With only 14 states now recognizing same-sex marriage (I continue to count DC as a state, and of course today’s other opinion brings California fully into the fold), Kennedy again demonstrates the ability to balance justice and pragmatism in the area of gay rights.
But there’s one other big piece of political news. The dynamics of marriage lite have now shifted. Only full marriage comes within the court’s ruling, a point made by both majority and dissenting justices. States will still have the ability to take half-measures, and I expect some will. But by doing so, they will be enacting laws they cannot expect to be fully equal to marriage. If they have any doubts, they can refer to Windsor.
So if the political argument continues to be about equality (and it should), anyone promoting civil unions as a political compromise will explicitly be compromising that. Politics is made of compromise, but even though today’s opinion does not rest on the equal protection clause, that constitutional protection is ever more visible through the political haze.
Expect to hear more about it.