Both were 5-4 decisions. Kennedy delivered the opinion of the Court on DOMA, Roberts on Prop 8. The lineups were slightly different. The dissenters on DOMA were Roberts, Alito, Scalia, and Thomas, and on Prop 8 Kennedy, Thomas, Alito, and . . . Sotomayor. Prop 8 fell because of standing and not on the merits of the legal issue, so the Court lineup actually doesn’t say much on that one. Of course the end result is that California will now recognize same-sex marriage.
I’ll be back much later with a full analysis. What the Windsor (DOMA) case means is that the federal government cannot prohibit states from recognizing same-sex marriage, and those married in states allowing SSM must receive federal benefits. States are still free to not recognize same-sex marriage, but Kennedy’ s use of the Equal Protection Clause to underpin his argument means that the handwriting is on the wall. Scalia’s dissent is a must-read, but Alito’s is perhaps more significant – particularly footnote 7.
In the meantime, here’s some happy reading for you to ponder for the rest of the day.
Update: I think my explanation of the DOMA decision’s results is a little shaky. This was never about what the states could do, but it simply relates to granting federal benefits to same sex couples who claim to be married.