23. The Case That Split the Middle
Windsor and the Court’s compromise on marriage equality
Imagine you’re legally married, grieving the death of your spouse—and then hit with a $363,000 tax bill. That’s what happened to Edith Windsor. She had married her partner, Thea Spyer, in Canada. New York recognized their marriage. But the federal government didn’t, because of a law called the Defense of Marriage Act (DOMA). DOMA said marriage could only be between a man and a woman for federal purposes. That meant Edith didn’t count as a surviving spouse when her wife died.
She sued. And she won.
But United States v. Windsor (2013) wasn’t just about taxes. It was about what it means when the government recognizes your relationship—and what it means when it refuses to.
The Court struck down DOMA’s definition of marriage. But it did so in a way that left many questions open.
Dignity, Disrespect, and Legal Recognition
Justice Kennedy wrote the majority opinion. He said DOMA didn’t just deny same-sex couples legal benefits. It sent a message that their relationships didn’t count. That message, he said, hurt not just couples like Edith and Thea—but also the children being raised in those families. Denying recognition was a way of denying dignity.
He pointed to an old principle: the government can’t treat people unequally just to hurt them. He quoted from Bolling v. Sharpe (1954), a case that struck down segregation in Washington, D.C. schools. That case said even though the Constitution’s Equal Protection Clause only applies to the states, the federal government can’t discriminate either—not under equal protection, but under the Fifth Amendment’s promise of due process. (Bolling was the companion case to Brown v. Board, but for federal schools.)
That’s the legal hook Windsor used: DOMA was a federal law, so the Court couldn’t rely on the Equal Protection Clause directly. Instead, it said equal protection values live inside the Fifth Amendment’s Due Process Clause when it comes to federal action.
A Little Bit of Everything—But Not Too Much of Anything
Kennedy didn’t stick to just one legal rule. He used pieces of three:
Federalism: Normally, states get to decide what counts as a valid marriage. DOMA overrode that tradition, refusing to recognize marriages even when a state said they were legal.
Equal Protection: Laws can’t treat people unequally just because they’re unpopular. Congress passed DOMA in part because it disapproved of same-sex couples—and that, Kennedy suggested, wasn’t a valid reason.
Due Process: Even if he didn’t say same-sex marriage was a fundamental right, Kennedy talked about how DOMA interfered with liberty, family life, and personal dignity.
By blending all three ideas, the Court was able to strike down DOMA without fully answering big questions. Was same-sex marriage a fundamental right? Should sexual orientation get special legal protection? The Court didn’t say. Instead, it focused on the harm DOMA caused to couples who were already legally married under state law.
In Windsor, Kennedy doesn’t declare dignity as a freestanding constitutional right. But he folds it into the interpretation of due process and equal protection. It’s part of what makes unequal treatment harmful, and what makes liberty meaningful.
Why That Strategy Mattered
This wasn’t just a legal move. It was a political one. By avoiding a sweeping ruling, the Court left room for debate in the states. At the same time, it sent a strong signal: marriages between same-sex couples should be taken seriously—and denying recognition causes real harm.
Justice Kennedy’s opinions often work this way. He doesn’t always spell out the rules. Instead, he builds a feeling, a framework. He talks about dignity. He talks about harm. And then he lets the next case go further.
The Pushback
Not everyone on the Court agreed. Chief Justice Roberts said this was just a federalism issue; Congress wanted consistency in federal benefits. That wasn’t discrimination, he argued, just policy. Justice Alito said the case wasn’t really about equality, but about two different views of what marriage means: one based on procreation, the other on personal fulfillment.
Justice Scalia went further. He accused the majority of hiding its true agenda. If the Constitution requires the federal government to recognize same-sex marriages, he warned, then it probably also requires states to do so. Scalia thought the Court was setting up a future case—and he was right.
What Windsor Changed
Even though it didn’t legalize same-sex marriage nationwide, Windsor changed federal law. After the decision, married same-sex couples became eligible for over a thousand federal benefits: tax status, Social Security, immigration, and more.
And beyond those technical changes, Windsor changed the conversation. It said that same-sex relationships are real, worthy of respect, and harmed when treated as less than.
A Bridge to the Next Step
If Lawrence v. Texas was about the freedom to love in private, Windsor was about the right to be seen in public. It didn’t say that same-sex couples had a constitutional right to marry. But it said that when they did marry under state law, the federal government had no good reason to pretend otherwise.
That set the stage for Obergefell v. Hodges: the case that would, two years later, bring marriage equality to all 50 states.
Doctrinal sum-up:
Equal Protection (via the Fifth Amendment): Equal protection limits the states through the 14th Amendment, but for federal laws like DOMA, the Court uses “reverse incorporation”—reading equal protection principles into the 5th Amendment’s Due Process Clause.
Federalism: Marriage has historically been regulated by states; DOMA overrode state decisions without good reason.
Liberty & Dignity: Denying recognition “demeans” lawful same-sex marriages and harms families, especially children.