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
ALITO, DISSENT JOINED BY THOMAS
ALITO, too, doesn’t think Windsor has standing, but proposes an interesting framework of his own to decide standing, which Scalia criticizes (this is too nuanced I won’t go into detail).
On merits: “It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation’s history and tradition,” and so Windsor lacks a substantive due process claim to injury. In addition, “the Constitution does not guarantee the right to enter into a same-sex marriage. Indeed, no provision of the Constitution speaks to the issue.”
“To the extent that the Court takes the position that the question of same-sex marriage should be resolved primarily at the state level, I wholeheartedly agree. I hope that the Court will ultimately permit the people of each State to decide this question for themselves. Unless the Court is willing to allow this to occur, the whiffs of federalism in the today’s opinion of the Court will soon be scattered to the wind.” This is one of my favorite parts from the case. This also seems to be Kennedy’s argument (kind of) in the majority decision for Windsor, but he carefully sidesteps this trap of fully endorsing a state-by-state solution to marriage.
***In sum, ROBERTS, ALITO, THOMAS practice judicial restraint in both cases; unelected judges should not decide on the merits of such controversial political question – (Alito) best leave it to social scientists, philosophers, and politicians to wrestle with competing views of marriage. Judges are unfit to make final say on such question.
HOLLINGSWORTH VS. PERRY (PROP 8)
ROBERTS, MAJORITY JOINED BY SCALIA, GINSBURG, BREYER, AND KAGAN: “We have repeatedly held that such a ‘generalized grievance,’ no matter how sincere, is insufficient to confer standing.” Petitioners (proponents of Prop 8 ballot initiative) are not “agents of the people” for the state of California and cannot act as legitimate party. “Petitioners are not subject to the control of any principal, and they owe no fiduciary obligation to anyone.” Since petitioners are not elected officials, their actions not accountable to the people. Naturally, they cannot intervene in this case on California’s behalf
“The Court does not question California’s sovereign right to maintain an initiative process, or the right of initiative proponents to defend their initiatives in California courts. But standing in federal court is a question of federal law, not state law. No matter its reasons, the fact that a State thinks a private party should have standing to seek relief for a generalized grievance cannot override this Court’s settled law to the contrary.” (whereas Justice Kennedy believes that by denying petitioners standing, the Court effectively undermine California’s initiative process and the governing structure of the state)
KENNEDY DISSENT (he believes petitioners DO have standing per California’s initiative system and California law) JOINED BY THOMAS, SOTOMAYOR, ALITO
“In my view Article III does not require California, when deciding who may appear in court to defend an initiative on its behalf, to comply with the Restatement of Agency or with this Court’s view of how a State should make its laws or structure its government.”
“Giving the Governor and attorney general this de facto veto will erode one of the cornerstones of the State’s governmental structure.” – as top governmental officials in California refused to defend the constitutionality of Prop 8 after its passage
“And if the Court’s concern is that the proponents are unaccountable, that fear is neither well founded nor sufficient to overcome the contrary judgment of the State Supreme Court. It must be remembered that both elected officials and initiative proponents receive their authority to speak for the State of California directly from the people”
- Hollingsworth ruling ONLY applies to California. Governor Jerry Brown already issued guidance to California agencies to issue marriage licenses to same-sex couples, thus implementing federal district court’s interpretation that Prop 8 is unconstitutional under California state constitution. However, same-sex couples won’t be able to marry until 9th circuit lifts its stay (procedural impediment)
- States that currently allow same-sex marriage will be able to retain their right to issue marital licenses to same-sex couples
- Section II of DOMA regarding full-faith and credit remains; state maintains the option to not honor another state’s marriage. Section III and the federal definition of marriage between a man and a woman is struck down
- State constitutions that ban same-sex marriage remain intact i.e. Texas Constitution that defines marriage as between a man and a woman
- The issue of standing in both cases, whether the petitioner has the right to bring case to court, is intriguing as the understanding of injury is broadened to allow Windsor’s case to be decided on merits. This could well open up a new strategy for lawyers approaching deeply controversial social issues in terms of meeting standing
- The rulings are narrow as expected…substantive adjudication on whether or not Fourteenth Amendment offers same-sex couples equal protection under federal laws is strategically ignored. The Court again opts not to show its cards but relies on due process argument using primarily Fifth Amendment (though the majority’s constitutional interpretation in Windsor is not too clear) This just means this: further litigations and state initiatives to come!