Since the world wouldn’t be complete without my two cents on the Supreme Court’s rulings in Windsor and Hollingsworth, it’s my duty to comment.
This one was a complete victory plus. DOMA was struck down as unconstitutional, and now the federal government must treat all same-sex marriages that are recognized by the states of which the married couples are citizens as marriages for federal purposes. The actual text of the decision is a bit odd. Justice Kennedy repeatedly references federalism concepts while denying the decision is based on federalism, and emphasizing denial of due process under the 5th Amendment, under the doctrine of substantive due process, by which the procedural requirements for laws that impinge on protected liberty interests, like marriage, speech, religious freedom, etc., are higher that the procedural bar for, say, environmental regulations–e.g., it requires less justification to tighten the standards of the Clear Air Act than to limit free speech. Randy Barnett explains this “novel” logic, which, he notes, “is likely to confuse observers as it seems to have confused the dissenters.” In a nutshell, when a state grants the right to marriage, it creates a liberty interest that the federal government must respect, and can only limit if it clears that higher due process bar. Since it is a protected liberty interest that it impinged, the Court will use heightened scrutiny, and under this heightened scrutiny, DOMA falls short. It’s confusing because “a state’s exercise of its police powers to identify a right has not previously been used to justify heightened Due Process or Equal Protection clause scrutiny.”
There’s a reasonable logic here, but I’m not comfortable with it because it is novel, and I think the Court could have ruled without inventing a new legal logic. I think DOMA falls simply on federalism grounds as argued by an amicus brief Barnett was party to; (still quoting from the linked post) “(a) Congress had no enumerated power to regulate or “defend” marriage by imposing its definition on the states, and (b) DOMA was not necessary and proper for carrying into execution any of its enumerated powers. By operating in so sweeping and undiscriminating a manner, DOMA was exceeded its enumerated powers by enacting a law that by design interfered with the operation of the traditional state regulation of marriage.” The defense of DOMA was that it provided “uniformity and stability” in federal law in regard to marriage, but that was transparent nonsense. The federal government has traditionally recognized any marriage recognized by a state, except with occasional very specific and limited exceptions. DOMA, by rejecting a large set of marriages recognized by states, across a vast range of federal statutes, created the opposite of uniformity and stability–never before had it said, in effect, “this class of marriages will not be recognized in any circumstances.” The “uniformity and stability” language is so precisely the opposite of the reality that it’s hard not to see it as Orwellian double-speak, and I think as an unprecedented violation of federalism’s allowance of marriage definition to the states it could have been struck down.
But Kennedy went further, and the further is significant, as the dissenters are quick to note. By emphasizing the liberty interest in same-sex marriage, and the decisive factor of the role of “animosity” in the motivation for DOMA, he creates an opening for challenges that any state’s denial of SSM is a denial of a protected liberty interest, motivated only by animosity, and therefore a denial of equal protection under the 14th Amendment. He didn’t reach that conclusion–as the Chief Justice emphasizes in a dissent that is almost pathetic in its desperation to point out that obvious point–because that question wasn’t actually before the Court in this case, and the Court has a long-standing tradition (occasionally breached, as all are traditions) of not going further than necessary to decide a case; of not going beyond the limited question in front of it to answer related questions. But it certainly appears the majority has laid the groundwork for, very nearly sent an open invitation for, a suit on those grounds against a state’s denial of SSM. Doubtless others will also see it that way and we will see such suits come forth in the near future.
Scalia’s dissent is surprisingly toned down, I think, and a bit pathetic in how weakly it presents its criticisms. Ken White at Popehat has a nice compare and contrast of Scalia’s dissents in Lawrence v. Texas and Windsor. In Lawrence, Scalia wrote:
It is clear…that the Court has taken sides in the culture war… Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.
Now the culture war rhetoric is gone, implicitly disavowed even.
[T]he majority says that the supporters of this Act acted with malice—with the “purpose” (ante, at 25) “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” … to … “impose . . . a stigma,” … to brand gay people as “unworthy,” … I am sure these accusations are quite untrue… [T]o defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements.
So Scalia is left to pout that the Court didn’t have jurisdiction. There’s a reasonable argument that there was no true case or controversy, given that the executive branch chose not to defend the law, but standing and jurisdiction issues are judgement calls, and Kennedy’s argument in support of jurisdiction is sufficient. His claim that the argument in favor of jurisdiction is “jaw dropping” is not just silly, but is such weak sauce compared to his usual form that one suspects he knows it’s silly, that he’s reaching desperately.
If the Court had followed him on the jurisdiction issue, DOMA would still effectively have been constitutionally dead law, but Scalia ignores an important point made by Kennedy–that the Executive branch, while refusing to defend DOMA in the courts, was still enforcing DOMA. This bastardized action by the Executive meant that further DOMA challenges were certain to come before the lower courts, most likely resulting in divergent lower court decisions that would have to be resolved. But even if all lower court decisions went against DOMA because the Executive never defended it, we’d have the weird situation of every same-sex couple affected by DOMA having to still challenge the law individually because it was still being enforced in every case except those where it was challenged. Kennedy was dead right to say that prudential considerations compelled the Court’s jurisdiction in this case. Scalia can’t not know that, so his laser-like focus on whether there is an actual case or controversy in this particular case is a clear dodge. It makes me wonder if he would like to post-pone a decision in hopes of a change in Court personnel or at least a President who decides to both enforce and defend DOMA?
His substantive argument focuses primarily on the confusion noted by Barnett, that Kennedy’s opinion creates.
[T]he opinion starts with seven full pages about the traditional power of States to define domestic relations—initially fooling many readers, I am sure, into thinking that this is a federalism opinion.
That’s an apt criticism of style, to be sure, but not a substantive one. His real criticism seems to be that the Court really ruled against the constitutionality of denying SSM without being willing to admit it.
By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples, see ante, at 25, 26. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member of this institution. …We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.
This is a lament, rather than a powerful legal dissent. Scalia knows the cause is lost, and one can almost read it as a plea for restraint because he recognizes that the democratic process is inevitably moving toward approval of SSM. But what is missing here is much of an actual argument against SSM, and in support of the conservative side in the culture war. But the upshot is, all those state recognizes same-sex marriages are now federally recognized marriages. Hallelujah.