Danny Zeng | June 26th, 2013
It’s all over the news, so I’m not going to cover the basics but instead dive straight into these cases. Just in case you were living under a rock though, 1) Section III of DOMA that defines marriage as a social institution between a man and woman for purposes of federal law was struck down today by the Supreme Court; 2) Prop 8 was vacated and remanded to lower court on procedural ground, namely that petitioners (proponents of Prop 8) were found not to have standing, so the Court did not consider the merits in Hollingsworth – meaning California will have same-sex marriage. Most are direct quotes and passages from the cases that I think are relevant for the sake of understanding different arguments. I expounded on some of them with my own comments and explanations. I also put a heavier emphasis on Windsor because it includes arguments on merits and not just on procedural jargons. I know everyone’s busy and won’t have the chance to go through 100 pages of legal writing (I did – don’t judge), which is why I “sparknoted” the cases for you into 4 pages! My goal is to stimulate a conversation about these cases using highlights from original documents and to let more people know what they are and are not about.
UNITED STATES VS. WINDSOR (DOMA SECTION 3)
“By history and tradition the definition and regulation of marriage, as will be discussed in more detail, has been treated as being within the authority and realm of the separate States…” but the federal government could pass “limited federal laws that regulate the meaning of marriage in order to further federal policy,” but DOMA goes too far.
“The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens…the Federal Government, through our history, has deferred to state law policy decisions with respect to domestic relations…The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning” BUT “Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.” What? Did I miss something? Kennedy all the sudden slams on a gas pedal that’s going 90mph on a state highway only to hit I-10 and starts to lose steam. His federalism argument stops short of arguing that states should be able to decide on marriage altogether as what Justice Alito alludes to in his dissent. Instead, Kennedy changes gear a little and attempts a different set of arguments …
“The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence”
“DOMA’s principal effect is to identify a subset of state sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency.”
“It [state enactment of marriage equality laws] reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality”
“The avowed purpose and practical effect of the law [DOMA] here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States”
“And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.”
“This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution”
“While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved”
There is no evidence that DOMA “codifies malice” or that “no legitimate government interests.” Deference to the legislative branch – Roberts does not address heightened scrutiny needed to consider for issues of sexual orientation. Scalia and Alito dodge this line of reasoning as well and defer to rational basis. This almost rings Robert’s framework in the Obamacare decision: it’s not the court’s prerogative to decide on political questions best left to other branches of government
“I would not tar the political branches with the brush of bigotry.” Roberts is concerned about the Court having to adjudicate on states’ definitions of marriage in the future; he attempts to circumscribe the bounds of the majority opinion.
SCALIA, DISSENT JOINED BY THOMAS
“The ‘prudential’ discretion to which both those cases refer was the discretion to deny an appeal even when a live controversy exists—not the discretion to grant one when it does not.” Scalia takes issue on majority’s interpretation of judicial review and its logic on Windsor’s standing.
“The ‘judicial Power’ is not, as the majority believes, the power “‘to say what the law is,’” – only when the case has actual standing to sue, which Scalia believes not. The justice reasons that Windsor had already won her case at the district level. The book should have closed there.
“If a President wants to insulate his judgment of unconstitutionality from our review, he can. What the views urged in this dissent produce is not insulation from judicial review but insulation from Executive contrivance.” [emphasis mine] Scalia is saying that of course the court has the power to judicial review but that is not contingent on say Obama administration refusing to defend DOMA
“If Congress can sue the Executive for the erroneous application of the law that ‘injures’ its power to legislate, surely the Executive can sue Congress for its erroneous adoption of an unconstitutional law that ‘injures’ the Executive’s power to administer—or perhaps for its protracted failure to act on one of his nominations. The opportunities for dragging the courts into disputes hitherto left for political resolution are endless” – This goes back to Scalia’s dissent on Windsor ever having standing because if so, this would lead to dog-eat-dog litigation between Congress and White House…
…Congress already has numerous tools to ensure enforcement i.e. power of the purse and power to confirm presidential appointees. “Our system is designed for confrontation” leave it to political branches
“Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faithfully implement the Court’s decree, just as he did not faithfully implement Congress’s statute, what then? Only Congress can bring him to heel by . . . what do you think? Yes: a direct confrontation with the President.” – classic sass from Scalia…Congress should confront the President if he fails to enforce the laws not the Court
“The decision is based on Fifth amendment due process grounded in liberty not exclusively or primarily on Fourteenth Amendment. “In accord with my previously expressed skepticism about the Court’s “tiers of scrutiny” approach, I would review this classification only for its rationality.” Tier scrutiny elevates the ground for judicial consideration because such case considers sexual orientation and sexual relationships, something that the majority had done; but Scalia disregards that and judges based on the lowest threshold: rationality
“DOMA avoided all of this uncertainty by specifying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision” Scalia fights back with a reason for section III definition – to provide uniformity to federal law enforcement
“Some might conclude that this loaf could have used awhile longer in the oven. But that would be wrong; it is already overcooked.” I love this quote…Scalia is referring to “substantive due process” a complex class of constitutional jurisprudence which he’s not a fan of – this goes along with his skepticism toward Kennedy’s reasoning in the majority. “The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a ‘bare . . . desire to harm’ couples in same-sex marriages” I find this a strong objection to the majority’s opinion. What exactly is Kennedy basing his decision on in terms of precedence?
Scalia concludes that the decision helps no one, that “the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent” partly because he points out the flaw of the majority opinion – which I fully agree – that it comingles multiple constitutional logic that weakens its argument