The DOMA Decision

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.

First, DOMA
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.

About James Hanley

James Hanley is former Associate Professor of Political Science at Adrian College and currently an independent scholar.
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31 Responses to The DOMA Decision

  1. Pingback: LGBT News DOMA Declared Unconstitutional: Supreme Court Ruling - Page 4 - Empty Closets - A safe online community for gay, lesbian, bisexual, transgender people coming out

  2. ppnl says:

    The problem is Scalia’s logic could easily be used to argue against the Loving vs Virginia decision. Scalia seems to be in total denial about this.

    The underlying problem is what is obvious bigotry today was not so obvious in the past. Scalia’s judicial philosophy cannot handle this.

  3. James Hanley says:

    Scalia also ranted about overturning the democratic process, in the same week he voted to strike down part of the VRA as unconstirutional. That he seems incapable of recognizing the hypocrisy of this is not to his credit.

  4. pierrecorneille says:

    Even more hypocritical–or at least so flamingly paradoxical that some sort of acknowledgement seems in order–is that while both VRA and DOMA were passed with overwhelming support (in terms of congressional votes), VRA was passed more recently and with more yes votes.

    Not that I think that necessarily matters when it comes to the constitutionality of a provision.

  5. Ryan Noonan says:

    Jack Balkin has a nice post on class legislation and why Kennedy’s opinion rests well within traditional interpretations of equal protection.

    Balkin’s argument also has the nice feature of not relying on the utterly arbitrary levels-of-scrutiny analysis that makes no actual logical sense.

    Someone else on Balkin’s site points out that making this a pure federalism decision would almost certainly have destabilized reams of federal lawmaking, as any number of things have been traditionally left to the states if you define “traditionally” in a suitable way. I understand that Randy Barnett, who is a right-wing lunatic, would be totally cool with this, but obviously those of us who actually give a shit about other human beings are less inclined to just totally tear apart all of U.S. domestic policy. And there’s no way the liberal justices would have signed on for such nonsense, which would have left us with a 4-4-1 decision, and what a mess that would have been.

    In any case, this is all kind of beside the point. We don’t need insane theories of federalism when this is a straightforward case of sex discrimination that is pretty clearly prohibited by the 14th Amendment. Conservatives and libertarians don’t like that fact, because (a) it requires acknowledging that the Civil War happened and the Constitution got amended afterward, and (b) it requires acknowledging that individual people have rights and we can’t always just ask which side corporations are on before we hand down a legal decision.

  6. James Hanley says:

    Randy Barnett, who is a right-wing lunatic,

    That’s worse than unfair; it’s untrue.

    …libertarians don’t like that fact, because … it requires acknowledging that individual people have rights and we can’t always just ask which side corporations are on before we hand down a legal decision.

    Right, Ryan. Libertarians don’t care about individual rights, just corporations. (eye roll) Have a cup o’ Joe and try again, please.

  7. Ryan Noonan says:

    Randy Barnett invented, out of whole cloth, a legal argument intended to persuade conservative judges to knock down Obamacare. It was utterly scurrilous and calculated to give the right-wing ammunition for gutting the ability of the government to help people. Maybe he’s not personally a right-winger, but at best he’s a handmaiden of the right wing.

    As for the other bit, you just wrote a post about how the decision wasn’t good enough because it talked about rights and equality and didn’t place enough emphasis on deciding which level of government gets to violate people’s rights. Your own words condemn you.

  8. Ryan Noonan says:

    Actually, just to lean a little harder, there’s something totally HILARIOUS about Randy Barnett chiding anyone for using a “novel” argument, when his argument against Obamacare was both completely invented by him and absolutely the stupidest thing ever to boot. He is just the absolute worst.

  9. James Hanley says:


    Maybe you should have read the Barnett piece I linked to. He didn’t chide anyone; I did (and only mildly). And in that piece, Barnett wrote:

    But overlooked in debates about our argument, we also made this federalism claim in the context of equal protection: (c) DOMA’s sweeping and indiscriminate application to over a thousand federal statutes could not pass any level of equal protection scrutiny, even the most deferential, because Congress failed to identify a federal interest why each of these disparate federal laws should not track state laws defining marriage, as had previously been the case. [emphasis added]

    So, equal protection, fails lowest tier of scrutiny…what exactly are you complaining about? It sounds like you’ve just got lots of spleen to vent. Perhaps you should skip the coffee and go see a doctor about that.

    At this point I’m pretty sure you’re not reading for comprehension and discussion, but reading carelessly so you can find a fight. Which makes you about like 98% of everyone on the internet. Doesn’t that make you feel special? Does your tribe have a nickname and special colors? Can I get an autographed jersey?

  10. Ryan Noonan says:

    Is the other 2% the whiny, pretend-intellectual wankers I left the League to escape? Because if so, I’m happy where I am.

  11. Ryan Noonan says:

    Also, I’m pleased to note that you didn’t even bother to address any of the actual points I made in my post, because it’s much easier to zero in on the meany head words I used. Again, if the 2% is the people who prize form over substance, they can keep whatever circle-jerkery they’re selling.

  12. James Hanley says:

    Well, Ryan, if your position is that polite conversation is for suckers, and consciously striving to be a a jerk is the more admirable way, I guess I don’t have much more to say to you other than noting that if you want to ensure people don’t address your points, acting like a jerk is a good way to go about it. If you do that, and then crow that people didn’t address your points, it seems to me like you got what you came looking for. I’m not impressed, but if it keeps your smug up and helps you go to sleep feeling good about yourself, more power to you.

  13. Ryan Noonan says:

    I was being a jerk to Randy Barnett. Who gives a shit? I wasn’t a jerk to you until you got all huffy.

  14. James Hanley says:

    Eh, you showed yourself to be not just a jerk, but a clueless jerk, since you didn’t bother to see what Barnett actually said. Perhaps I give a shit about people coming here and being clueless jerks. Seriously, if you are both a jerk and clueless, what do you bring to the party? Don’t fucking tell me it’s substance, because you blew that by misinterpreting both me and Barnett.

  15. Ryan Noonan says:

    Scintillating wit is, I think, the correct answer. Boy do you have a bug up your ass today. I’m sorry I sullied your precious little blog. I’ll remember that this is a place for serious adults who definitely have important things to talk about and a real measurable impact on policy.

    This is why I left the League. Every comment thread descend into this wanky, snotty, “I’m such a serious person!” crap. Who gives a fuck? We’re all a bunch of nobodies on the internet who are bored at our day jobs. Christ. Get a grip.

  16. James Hanley says:

    Wait, you thought what you wrote was witty? It sounded fuck you” serious to me.

    Humor is always welcome here, but it’s all in the delivery, brother. You can blame the audience or you can work on your act.

    Meanwhile, here’s a link to the definition of “scintillating.” Somebody might have explained it to you wrong.

  17. Ryan Noonan says:

    The wit comment was, itself, a joke. Apparently my delivery really DOES need work.

  18. Ryan Noonan says:

    Yeah, it was totally analogous to a crazy racist rant. Man, you are just a total asshole. This little experiment is over. Adios.

  19. James Hanley says:

    Sigh. And you think I’m the humorless one?

    Well, best of luck to you, Ryan. I’ll look for you on the re-runs.

  20. michaeldrew says:

    What it looks like to me is that Kennedy wrote himself a strong liberty opinion that would have been both a blow against inequality and federalism in this area, realized he couldn’t just go with that, and so back-doored a federalism hook to save federalism (something Earl Warren wasn’t concerned about when it came to states’ prerogative to define and limit marriage). Federalism was entirely unnecessary for the logic of his opinion to work. It’s just an add-on; this could easily have been the fifty-state order that’s probably coming within fifteen years based on the normative constitutional logic used to decide the merits. Further, as Ryan says, it’s not the case that a federalism finding would not have been novel. It would have been novel with respect to its implications for current federalism doctrine. (Where does this idea come from that because a legal theory is simplistic and absolutist, it is therefore not novel?) What would not have been novel was to simply find that the logic of Loving applies here, in this same area of law: no persuasive federalism concerns, but rather dispositive Equal Protection and Due Process concerns. Kennedy is just enamored of federalism, and so made it the fact that DOMA reached into an area traditionally left to states (except it’s not really been: Loving) that was the (convenient) special evidence he decided would be necessary to provide that the standard of review he wanted to apply so that the law would fall, would apply here (but not elsewhere, i.e. in the states). Even though Earl Warren already basically told us 45 years ago that no such special evidence was necessary, whether in the states or for the United States. Federalism saves federalism. Just because.

  21. michaeldrew says:

    …Oh, and Barnett looks to me to be doing little but trying to make a silk purse out of the sow’s ear (for him) that federalism was in no way necessary for the decision, but was instead spared and lashed to the larger logic primarily for its own sake, or to the extent to which it had a purpose in the decision, to delay the application of the larger logic of the decision, in which Kennedy clearly believes, to the United States, i.e. to delay the protection of liberty in this area across the United States, for no particular reason other than, again, “federalism” for its own sake (Loving be damned).

  22. Matty says:

    It seems to me the American system has a kind of institutional memory of the fact that at the beginning 13 completely separate nations was an option and this leads to a built in resistance in many quarters to any change in the state federal relationship.

  23. pierrecorneille says:


    I would like to apologize to you people over in UK about the unjust war we’re all about to celebrate over here tomorrow.

  24. Matty says:

    Cheers, but I think the apology should go to the native nations or as Thomas Jefferson called them “merciless Indian savages”. Of course both sides need to apologise for that given the British government sold out their obligations to defend native borders by ceding land that wasn’t theirs at the Treaty of Paris.

  25. James Hanley says:

    Pierre, you traitor! You’re probably going to spend the eveneing at a British Pub drinking Newkies* and watching a Man U-Arsenal rerun. Come over to my house. Aerial fireworks are legal in Michigan now, and we’ll watch the rockets’ red glare with some good American whiskey in hand, and just for kicks we’ll burnnan effigy of Prince Chuckles wrapped in the British flag!

    *Owned by Heineken–there’s the definitive end of the Empire {evil laugh}!

  26. J@m3z Aitch says:

    @Michael Drew: this could easily have been the fifty-state order that’s probably coming within fifteen years based on the normative constitutional logic used to decide the merits.
    Except that this would have actually gone well beyond the question at hand, which the Court rarely likes to do (and when it does, rarely does well).

    @Matty: at the beginning 13 completely separate nations was an option and this leads to a built in resistance in many quarters to any change in the state federal relationship.
    Perhaps. Certainly in “some” quarters. But there’s also a meaningful logic to to federalism in any relatively large and diverse country, and so any change in the relationship is a pragmatic question as well.

  27. Matty says:

    I am seriously impressed you’ve heard of Newkie Brown, I didn’t think it was even sold outside of the north east.

  28. J@m3z Aitch says:

    Oh, yeah, it’s very common, at least here in the Midwest. The crappy bar where my colleagues and I hang out most often has the typical dive-bar American beer selection…+Newkie Brown. Oddly, Wikipedia claims Newkie as a colloquialism for England, but I’m never misunderstood when I ask for it by that name.

  29. Michael Drew says:

    Yeah, that was unclear. It wouldn’t have been this decision itself as that does go beyond the question in the case, but it would have given a completely clear, direct rationale for that decision in its dicta. As you say, it still does to a large extent, but any application to states is limited by the tradition-of-federalism-in-this-area hook used to show animus.

  30. pierrecorneille says:

    @ Matty: Of course, you’re right.

    @ James: I’ve never heard it called “Newkie,” and I had to google it to find out what it was. It’s been a while since I’ve had one.

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