HIGHLIGHTS: On SCOTUS Decisions in Windsor & Hollingsworth

Photo Courtesy of The Atlantic Wire

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.



“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.


“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

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We the People of Turkey, Brazil, and Syria

Protestors outside the municipal theater in downtown Rio de Jainero June 17th, 2013
Photo Courtesy of Christophe Simon, AFP/Getty Images via USATODAY

Danny Zeng | June 25th, 2013

This week as we wrestle with landmark decisions from the Supreme Court, the controversial “Gang of Eight” immigration bill, and the President’s climate change agenda, we are reminded of the robustness of our democracy. All three branches of government are acting in concert to engage in issues of immense importance to the public. They are leading the political discourse at our nation’s capital that filter through news organizations, talk shows, blogs, YouTube updates, and podcasts to the American people, who then have the luxury of consuming these daily soundbites – and oftentimes boiling tirades-  from people of opposing views without having to give concern to our physical safety or that of our friends and families. And yet these precious freedoms that allow us to have constructive, heated, and  ultimately vibrant discourse about the direction of our country, the merits of a legislation, and the conduct of our public officials are foreign to so many across the globe who enjoy so little freedom in the public sphere.

As I read about what is happening in Turkey, Brazil, and Syria, I am ever so grateful for the kind of hard fought freedoms that we enjoy here in the U.S., even though we are constantly reminded of their slipperiness.  Despite the public ire over IRS targeting conservative groups, government wiretapping reporters, drone attacks against American citizens, or NSA tapping of our phones, the American people largely vocalize our disagreements, peacefully, through non-violent democratic channels. On the other hand,  over 93,000 people have died in the Syrian conflict, and over thousands are injured and four confirmed dead in Turkey in recent weeks as result of the anti-government protest. The Turkish police was firing tear gas and rubber bullets at their own people.  Most of these issues can be understood from the perspective of freedom: a perennial political and economic ideal that mutually sustains each other through capitalism and democracy, a political notion popularly articulated by the late Milton Friedman in 1962 and many others.

Oftentimes in a democracy, people take their issues to the streets, a sign of either economic or political distress. The mix of the two could be fatal to a sitting regime, as evidenced throughout the history of great kingdoms and empires. Present protests happen for the same reasons. The source of protest in Brazil stems from “a strike against a 9-cent bus-fare hike,” a seemingly small if not utterly incomprehensible fuse – for many Westerners at least – that it’s simply awe-spiring. The episode strikes me as a non-graphic replay from a similar incomprehensible-to-the-West display from Arab Spring two years ago, when a Tunisian vegetable peddler set himself on fire in front of a governor’s office. These massive protests against government corruption and graft are testaments, to the chagrin of many big-government advocates I’m sure, that governments with incoherent economic policies are doomed to fail from within as college students, working class, and middle class citizens rise up against an administrative state and layers of public fat that take away from productive sectors in the economy. Economic freedom is invariably linked to political freedom. Both, in my mind, have to harmoniously co-exist for true prosperity and progress.

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Common Sense Skepticism: A Wake Up Call on Immigration Reform

Photo Courtesy of Washington Post’s Wonk Blog

Clay Olsen | June 10th, 2013

It is very difficult to keep up with all the news coming out of Washington with scandals appearing left and right. However, the American people must stay vigilant in focusing on legislation that has the power to radically change the country. Even though much of the media is focused on what is happening with the IRS or whatever it may be, we must remember that there is a group of politicians, known as the “Gang of Eight,” that are working to reform immigration. What does this reform mean for America (American citizens)? Surely it cannot be based on political gains, can it? For now, let us forget about the potential political impacts and instead, focus on the issue in a common sense manner.

The bill that the Gang of Eight has whipped up is over 1,000 pages long and is said to be a compromise between Republicans and Democrats. Of course one of the big concerns that Republicans voice with regards to immigration is a secure border. The bill only requires the Department of Homeland Security to submit a plan to secure the border; no action is required. However, we are supposed to trust that the border will become more secure after this bill passes, and we are supposed to give the Left what they want in return.

Let us take a little trip down memory lane and examine past immigration reform bills in our history. The 1965 Hart-Celler Act was defended by Democrats as being a bill that would not increase immigration. However, within the bill were the introductions of chain migration and the elimination of national quotas. Both made it easier for net welfare takers to be accepted by the immigration system. Illegal immigration increased from 2.5 million in the 1950s to 4.5 million in the 1970s to about 10 million in the 1990s. Again, this was a bill that Democrats repeatedly endorsed as a low impact piece of legislation with regards to immigration.

Immigration reform entered the picture again with the 1986 Immigration Reform and Control Act. This bill would grant 3 million illegal immigrants with amnesty. In order to get enough support to pass, it “promised” border security. After the bill was passed one can only guess which aspect of the bill got priority. Amnesty or security? The pardon of illegal actions or the safety of our country? As expected, amnesty was given and border security was not.

With this kind of a track record, I think it is safe to say that we should be very careful to trust the Left. They continually tell us that the border is secure right now. So are we to expect any increased security? It is easy for those in the D.C. bubble to claim that the border is secure when they do not witness and are not affected by the gangs, drug trafficking, and shootings that occur on our southern border. And obviously they do not want to know. They seem to not even care about the danger that is threatening our nation as displayed by President Obama’s Oval Office meeting with illegal immigrants last month while disregarding the opinions of border security officials and immigration officers. The job of these politicians is to represent the American people, not illegal immigrants.

Welfare benefits and government subsidies are also an issue when discussing immigration reform. A large amount of illegal immigrants would qualify for welfare. This large of an amount would have a huge impact on an already bankrupt welfare state that the left refuses to reform. I fear that the legalizing of millions of illegal immigrants would be like taking a flamethrower to an already raging forest fire. The Gang of Eight bill does not relieve American taxpayers from subsidizing illegal immigration. It waives the public charge law. The public charge law prohibits the Department of Homeland Security from accepting an application from an illegal immigrant that would be an economical weight in our society. So there would be no consideration as to how the taxpayer would be affected by accepting an illegal immigrant into the system.

The bill also sets up a slush fund for advocacy groups to assist potential amnesty applicants. Remember that “government funds” is another term for “taxpayer money.” Also, illegal immigrants would be able to litigate against amnesty decisions that they consider unfair. Again, the litigation would be paid for by the American taxpayer. No doubt, a concept that Eric Holder is drooling over.

So now we must decide how we are to go about fixing the current immigration issues. What do you do the morning after a burglar has broken into your home? Do you make sure there is milk and cookies out on the table for the next intruder? Or do you upgrade the lock on your front door to prevent it from ever happening again? Not a perfect analogy, but it will have to suffice. We have an avenue for immigrants to come into our country with no background check, no security scan, and no way of keeping track of them. We must fix the leak and then deal with those that are within our borders.

Now Marco Rubio has been criticized by some as scheming with the Left and praised by others because he is starting the conversation. I like how he is trying to slow the process down so that more people can comprehend the bill and give their opinion on it. I know Marco Rubio is a smart Republican, and I hope he fully understands whom he is dealing with.

How are we to respond to immigration reform? We must make sure that the law actually secures the border. The United States is the wealthiest country on the earth; I think we can successfully secure our borders. We must make sure that legal immigration is encouraged and illegal immigration is discouraged. Two immigration reform bills (discussed above) brought by the Democrats have clearly failed at accomplishing this task. Illegal immigration has skyrocketed while the legal immigration system remains broken. Above all, we must make sure that the law is in the best interest of the American citizen, a notion that seems obvious but is often disregarded.

So before a group of politicians try to ram through another immigration reform bill, let us remember the past and tread carefully when we talk of compromise. With an estimated amount of 11 million illegal immigrants within our borders right now, we must take immigration reform very seriously because it has the potential to have a huge, negative impact on our country’s future.