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Why Justice Kennedy’s Opinion in Windsor Shortchanged Same-Sex Couples

Supreme Court Justice Anthony Kennedy’s opinion in United States v. Windsor—invalidating section three of the Defense of Marriage Act—made the same mistake as his opinion in Lawrence v. Texas.  Both decisions relied upon abstract notions of “liberty” rather than a clear, text-based guarantee of equality.  Same-sex couples deserve more: they are entitled to equal treatment under the United States Constitution.  Bans on same-sex marriage cannot be supported by a rational basis, and instead constitute impermissible discrimination under the Fourteenth Amendment’s Equal Protection Clause.  By issuing a doctrinally muddled opinion that included discussions of federalism, liberty, due process, and equal protection, Justice Kennedy missed an opportunity to root same-sex marriage more firmly in the Constitution’s text.  Thus, Windsor makes the future of same-sex marriage more, not less, uncertain

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