Windsor: the New Distortion Factor
Windsor: the New Distortion Factor

JURIST Guest Columnist Walter Weber criticizes the US Supreme Court for what he sees as departures from established rules of law…

The Constitutional litigators are already familiar with the abortion distortion factor. As Justice O’Connor described it, “no legal rule or doctrine is safe from ad hoc nullification by this [c]ourt when an occasion for its application arises in a case involving state regulation of abortion.” The abortion distortion factor has claimed many jurisprudential victims, including even the otherwise venerable rules protecting the constitutional right to free speech, as demonstrated in the Supreme Court’s appalling decision in 2000 in Hill v. Colorado (Hill upheld a law essentially banning speaking to or handing literature to persons entering abortion facilities. Can anyone imagine the court upholding a law banning leafleting by environmental protesters outside a store selling products the protesters deemed toxic?).

There is now another legal goblin on the block: the homosexual distortion factor. The Supreme Court has again and again shown that its obsession with affirming “the dignity and status” of homosexual and lesbian unions will trump law and logic.

First, in Romer v. Evans, the court insisted that it knew the proponents of a state constitutional amendment barring special legal protection based on sexual orientation could only be motivated by “animosity” toward persons with homosexual inclinations, and that this required the court to strike down the state amendment. It was inconceivable to the court that there might be any legitimate reason to treat sexual proclivities different from, say, race.

Next, in Lawrence v. Texas, the court held that what had historically been regarded as a criminal felony—sodomy—was actually a constitutional right essential to “defin[ing] one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” (Any defendants who invoke this passage to justify their failure to heed even relatively new laws, e.g., regarding the wearing of seat belts or helmets, or insider stock trading, much less a host of more traditional crimes like fraud or robbery, are likely to be laughed out of court).

Then, in Christian Legal Society v. Martinez, the court used its fixation with homosexuality to trump the First Amendment. The court held that the right of a student religious group to require that its officers and members believe in the religion in question (as if it were somehow invidious to only let Catholics be priests or Jews be rabbis?) and adhere to its moral standards for sexual conduct (as if groups cannot set standards for behavior as a matter of institutional integrity?) must fall in the face of a state university’s requirement that groups not “discriminate” on the basis of religion or, crucially, sexual orientation.

The court’s decision this past spring in US v. Windsor only confirms this sorry trend. The decision is so incoherent as to be inexplicable other than as an expression of an obsession with the notion that homosexual and lesbian lifestyles must be affirmed. Consider the following:

The court declared that the federal Defense of Marriage Act (DOMA) (PDF) was problematic because the federal definition of marriage was different from the state definitions. Yet the court conceded that this same difference already exists—apparently without constitutional problem—elsewhere in federal law. In fact, federal definitions commonly determine meanings, for federal statutory purposes, of a variety of terms that may well be defined differently under state law. Recently, for example, the Supreme Court addressed the proper meaning of a federal law defining “child” for purposes of Social Security benefits, concluding that the posthumously conceived IVF offspring at issue were not “children” for purposes of the relevant federal law. The whole point of federalism is that the state and federal governments are independent, with neither bound slavishly to follow the other.

The Windsor court insisted that not redefining marriage to include same sex couples “degrade[d] or demean[ed]” such couples. The flaws with this argument are multiple. First, there is no “Demean Clause” in the Constitution. When a government official excoriates some class of people—corporate executives, union bosses, bankers, welfare dependents—there may be political consequences, but it is not unconstitutional. Second, even if there were a right not to be “demeaned,” exclusion from a definition is not ipso facto an insult. There are countless legal definitions that include some and exclude others. For example, there are federal definitions of “accountant,” “attorney,” “commodity broker,” “creditor,” “custodian,” “debtor,” “disinterested person,” “family farmer,” “family fisherman,” “farmer,” “individual with regular income,” “patient,” “relative,” and “stockbroker”—and that is just in one section of the federal code! Do these definitions “demean” those left out (e.g., a farmer who only earned 75% of his income from farming and thus does not count as a federal “farmer”)? Third, if “demeaning” is to be a constitutional claim, where is the limit? Can those suffering from medical conditions not included in the minimal coverage requirements of Obamacare successfully challenge that law for “demeaning” them?

How about those home schooled students not allowed to participate in public school athletics? Are believers “demeaned” by federal laws restricting religious activities in connection with federal grant programs? Again, claims phrased in these terms would likely be laughed out of court.

The Windsor court noted that New York’s more same-sex marriage-friendly laws reflected the “initiative of those who sought a voice in shaping the destiny of their own times,” and lamented that DOMA’s definition did not defer to that state initiative. But DOMA itself equally reflected the initiative of others who sought a voice in shaping this nation’s destiny at the federal level. Why did their initiative not count?

The court said DOMA “seeks to injure” those who are not treated as married for federal law. If that is so, then expanding DOMA to cover same sex marriage (SSM) is not enough either, as a DOMA-plus-SSM sweep “seeks to injure” cohabitants, bigamists, siblings who are mutually dependent but cannot marry, etc. For that matter, any law that stops someone from doing what they want (e.g., a non-Senator who wants to cast a vote in the U.S. Senate, parents who want to claim a federal tax deduction for their children’s private school tuition, protesters who want to enter restricted military facilities, etc) causes people to be “injured” in the same way.

Astoundingly, the court even said DOMA made it hard to instill in children of same-sex couples the belief that their family is equal to all others. As if the government was constitutionally obligated to inculcate acceptance of the sexual revolution in children! And again, does not a DOMA-plus-SSM statute inflict the same supposed constitutional injury on the children of single parents or cohabitants?

This potpourri of arguments would never carry the day in any other context. Windsor, like its predecessors Romer, Lawrence and CLS v. Martinez, cannot be explained as the application of law or logic. It is difficult to resist the conclusion that a majority of the Supreme Court suffers from a jurisprudential fever, analogous to the abortion distortion malady, that renders it incapable of perceiving good faith or legitimacy in any measures inconsistent with unqualified acceptance of the homosexual legal agenda. Any law daring to resist or question that agenda provokes intense emotional repugnance#151;heterophobia, anyone?#151;which clouds the jurisprudential mind and trumps otherwise established rules of law.

There is a remedy. In the abortion context, the court, after nearly twenty years of struggle in the wake of Roe v. Wade, finally mustered a majority to recognize that “men and women of good conscience can disagree” over the issue of abortion, and that there were “common and respectable reasons for opposing” abortion. A healthy dose of that same civility is badly needed in the current legal wars over the meaning of gender and sexuality.

Men and women of good conscience can disagree over same-sex marriage and the significance of sexual orientation. There are common and respectable reasons for opposing the homosexual legal, political and cultural agenda. If the Supreme Court cannot bring itself to acknowledge these facts as a matter of basic human decency, then the court is ruled by bigotry against moral traditionalists, and this country is in for a protracted period of ideological totalitarianism fomented by that august body.

Enjoy what’s left of your religious liberty and free speech, while it lasts.

Walter Weber is Senior Litigation Counsel for an organization in Washington, D.C. A highly regarded legal writer, he received his bachelor’s degree from Princeton University and his law degree from Yale Law School.

Suggested citation: Walter Weber, Windsor: the New Distortion Factor, JURIST – Hotline, Mar. 10, 2014,

This article was prepared for publication by Michael Muha, an associate editor with JURIST’s professional commentary service. Please direct any questions or comments to him at

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