Started: 6/26/2013
Completed: 6/26/2013
Recommendation: Take the time to read this...it is complicated
Recommended By: My wife
Words I looked up:
anodyne -- not likely to provoke dissent or offense
consanguinity -- related by blood
elides -- annuls or quashes (legal definition). Within context this word is exceedingly well chosen as it was used to suggest that the amicus argument was invalid because the amicus argument would quash the distinction between the enactment of a law and the enforcement of it. The word also means (when used with speech) slurring over (as in missing a vowel) and so the flavor of this word choice is to suggest that the amicus argument attempts to ignore the distinction by slurring over the very distinction between a law and the enforcement of it. What an impressive way to set the stage for subsequent, more detailed argument.
prudential limits -- limits imposed upon the judiciary (in this case, by the judiciary).
Review:
This is less of a review and more of a walk-through of the arguments.
OPINION OF THE COURT
SUMMARY
HELD 1. The court has jurisdiction
This case would normally have been ignored by the Supreme Court had the Executive not decided to stop supporting the consititutionality of the law while still (via the IRS) basically enforcing the law. Since the Executive did that (basically gave up on the law, but still enforced it), there was a conflict internally within the government and the Supreme Court is in place to resolve such conflicts in the area of constitutionality. Since the United States (the Executive branch) was no longer defending the constitutionality of the law, an amici curiae was allowed to make the defense and that body (the Bipartisan Legal Advisor Group created by the House of Representatives or BLAG) made a strong defense of the constiutionality of the law. So, in essence, there are two sides to the issue (there is some serious cash involved as well) and it is consitutional in nature. The Supreme Court should review the case and rule.
HELD 2. DOMA (Section 3) is unconstitutional by virtue of the Fifth Amendment (and is struck down)
(a) States should regulate marriage and, in this case, New York's decision that same sex marriage is legal is something that is both within the State's soverignty and an expression of an evolving understanding of fairness and equity within government.
(b) DOMA harms a group protected by New York's laws and the Federal Government cannot pass laws that harm a politically unpopular group (there are a series of court cases that reflect this point of view). In addition, the Federal Government should not be writing laws that are properly (and severally) the responsibility of the States (marriage laws being an example). Finally, DOMA forces same sex couples to live as a married couple according to the State, but an unmarried couple according to Federal Laws and this creates an untenable tension between State and Federal government.
DETAIL
I. History of the Case Prior to the Supreme Court
DOMA predates laws that allow same sex marriage within States. Section 3 of DOMA says that a "marriage" is defined as between one man and one woman and "spouse" refers to someone of the opposite sex whenever those words appear in Federal law (over 1,000 such laws are affected).
The defendants were married in Canada, but retained residence in New York (where their marriage was recognized as valid). One died and left her estate to the other. The IRS required that income tax be paid on the inheritance and did not allow the spousal exclusion because of Section 3 of DOMA. The defendant filed for a refund from the IRS via the court system.
While the refund was still working its way into the court system, the Executive Branch informed congress that it would no longer respect section 3 of DOMA due to unconstitutionality. This decision was made in an odd way as there had been no court case finding the law invalid and this is the first time that a decision has been made by the Executive not to enforce a law (based on the constitutionality of that law) without the law ever having been tested in court. Moreover, the decision was odd because the Executive Branch continued to enforce the law (as in the IRS requiring an income tax on inheritence from same sex married couples). The House of Representatives took issue with the unconstitutional finding and asked BLAG to intervene in existing cases on behalf of the Legislative Branch (the Judiciary did not allow BLAG to become the defendant, but made them an "interested party").
The District Court that heard the tax refund suit found in favor of the defendants and declared Section 3 unconsititional (ording the United States to pay a refund with interest). A couple of appeals were filed and the Second Court of Appeals for the Second Circuit agreed with the District Court's ruling. In an unrelated case, the Second Court of Appeals for the First Circuit also found section 3 of DOMA to be unconstitutional.
II. Can the United States and/or BLAG appeal this case to the Supreme Court?
This is a detailed repitition of the Jurisdiction argument provided in the Summary. It addresses whether there was harm (yes, the United States had to pay a large sum of money). BLAG could be involved as a strong advocate via amica curiae due to its "sharp adversarial concerns."
In addition, the appeal should be heard because dismissing it would suggest that the Second Court of Appeals should have dismissed the previous appeal and that would leave 94 cases in a sort of limbo as to how justices should rule. Additionally, DOMA is pretty far reaching (1,000 laws) and leaving this issue ambiguous would almost undoubtedly lead to many more cases and lots more expenses.
Finally, the Judiciary simply agreeing with the Executive position as to the consititutionality of a law without hearing the case would suggest that it is the Executive and not the Judicial branch which determines constitutionality. Since that is not the case (the Judicial branch is saddled with the role of determining constitionality), it is necessary that the Supreme Court hear the case even though the United States is both a plaintiff and in agreement with the defendant.
Therefore, this is a weird case with huge implications and needs Supreme Court Review, so the Court did (and should) review the case. The United States is the plaintiff as the agrieved party and BLAG plays a role as amicus curiae.
III. Are State and Federal Laws in Conflict?
The States regulate marriage, but the Federal Government can address rights and privileges of married couples as determined under a series of other rulings. The Federal Government has also messed with the validity of a marriage (citing a "fake" marriage for immigration purposes as being invalid despite meeting State qualifications). So, there is some basis for the Federal Government to address (and even define) marriage.
DOMA, however, is very far reaching and improperly bridges State sovereignty which has traditionally been the location for definition of the nature of marriage. DOMA flies in the face of a long history of saying that marriage was a State thing, not a Federal thing. DOMA is also a discriminatory policy (it does not open up opportunity to all groups, but restricts opportunity to a well defined group). New York, on the other hand was exercising its marriage laws to increase opportunity.
IV. The Fifth Amendment is being ignored
DOMA seeks to harm the very group that New York seeks to protect. Because of that, due process is not being afforded the harmed group and equal protection under the law is not being respected.
Both the wording and the intent of DOMA is to prevent one group from deriving benefits another group is granted. The law itself has the stated purpose of imposing a moral teaching. The purpose of the Law as described by the enactors was to create a second class of marriage and to discourage States from passing laws allowing same sex marriage.
In order to accomplish this goal, DOMA builds in inequality into all existing and future laws (not the least of which is the United States tax code). In addition, it identifies a set of State sanctioned marriages that will be made unequal under the law. Basically there would be one set of privileges and responsibilities as viewed by the State and another set of privileges and responsibilities as viewed by the Federal Government. By making same sex marriage "Federally unworthy" a second-tier of marriages is created.
This inequality of marriage between Federal and State creates a huge number of problems (tax issues, healthcare benefits, bankruptcy, burial in Federal cemetaries, recognition of crimes against spouse of a United States official, and Social Security benefits are identified).
The Fifth Amendment requires "equal protection under the laws" but DOMA clearly does not do this. When the Fifth Amendment is coupled with the Fourteenth Amendment it is clear that DOMA has overstepped. Thus, DOMA is struck down.
ROBERT'S DISSENT
The Chief Justice accepts the argument of Justice Scalia (below) on both jurisdiction and constitutionality. In addition it seems unlikely that so many legislators and the President had a principal purpose that was a bare desire to harm a group of people. There is a distinct lack of evidence that the law was passed with an intent of malice.
The ruling as provided by the majority cannot do more than simply decide this case, it provides no guidance as to what definition of marriage States may use. In future cases regarding the constitutionality of a given State's marriage definition the very arguments used to strike down DOMA will make it difficult to decide those cases.
There will be future cases around same sex marriage and this case will not serve as guidance for those future cases due to the narrow arguments by the majority.
SCALIA'S DISSENT
I. Jurisdiction
A. The Plaintiff and Defendant agree
Both the Plaintiff and Defendant argue that the lower appeals court properly resolved this issue. The heart of the argument from the majority is that the Judicial must decide the constitutionality of the law. This concept places the Judiciary inappropriately at the top of the Government. The design of the constitution was such that the three branches should coordinate, not be tiered.
The only time the judiciary should be involved is when there is a conflict between plaintiff and defendant. The judicial role is not to define the nature of a law, but to adjudicate a disputed claim. Determining the compatibility of State and Federal laws is not a function of the judiciary at all. Such a decision can only come as a side-effect of resolving a dispute. In order for the court to rule, a dispute must be present.
While it is true that the United States would be injured by having to pay a tax refund, the plaintiff is actually asking the court to find the law unconstitutional (which would require paying that refund), so any injury sustained by the plaintiff cannot be resolved by the action which the plaintiff is requesting. Between plaintiff and defendant there is no controversy.
The Supreme Court has never before agreed to hear a case when there is no controversy. Allowing BLAG into the case is not appropriate. The only other time such a thing has happened is when the validity of a mode of congressional action was at issue (the very existence of a portion of the legislative branch). The artificial construct created by the majority to allow BLAG into the case is an incomprehensible twist of legaleze. Even allowing BLAG to play the role of amicus does not meet the requirement for controversy because there must be "an opposing party" which BLAG even as amicus curae is not.
Reducing the Article III requirement that there be controversy to a "prudential aspect" is wrong and as poorly constructed as when it happened previously (Flast v. Cohen) but in the opposite direction. Redefining Article III terms throws the court in chaos. The idea that "controversy" can exist without disagreement is ridiculous. Even the cases cited by the majority do not uphold this position. Allowing the controversy to be upheld by an amicus curae is a breathtaking blow to Article III.
If both the plaintiff and defendant agree that a law is unconsititutional, there should be a consent decree. This case should not have reached this point. The President's decision to both claim the law is unconstitutional and enforce it is the issue here. The President could have resolved this issue without the involvement of the courts and so could the legislature. This court did not need to become involved and is inappropriately involved in interpreting the law rather than handling disputes.
B. Justice Alito's theory of jurisdiction (in his dissent) is flawed
Justice Alito makes the Judiciary the primary determiner of constitutionality and extends the legislative power dangerously. Congress should not be able to bring the President to Court over perceived inadequacy in the execution of the law.
Justice Alito's system overreaches making it too easy to bring cases (simple majority) and able to bring cases that no other litigant could bring to court. Suddenly the courts will be brought into endless political disputes. Implementing Alito's system would suddenly convey enormous power to the judiciary contrary to the wishes of the founders.
Without Justice Alito's system, the Congress can address issues directly with the President and the system is defined to afford Congress such an avenue of redress. Indeed the circular argument that the Court can force the President to do something the Congress cannot makes it clear that Congress should address issues directly with the President.
II. The Merits of the Case are Lacking
A. The Majority Justification is rootless and shifting
The majority argues that States should decide who should marry, but this case does not question whether States should make that decision. What does the majority mean by "the usual tradition of recognizing and accepting state definitions of marriage continue"? Of course, this is at odds with the Federal Government's long history of dealing with marriage (in particular requiring that Utah outlaw polygamous marriage before becoming a State).
How in the world are the Fifth and Fourteenth ammendments linked in this case? The only plausible linkage is that the Equal Protection clause is not the basis for the majority holding. Then, the majority cites case studies that all center around the Equal Protection clause for strking down DOMA. [Hereafter is a section of argument, I cannot follow that appears to argue that rationality (probably a legal term) is not being applied to a deferential framework. I'm sorry, but I can't explain that piece.]
The argument made by the majority amounts to "substantive due process" even though those specific words do not appear in the holding. Of course, in order to make that argument it would be necessary to argue that same-sex marriage is "deeply rooted in Nation's history and tradition" which is an impossible argument to make. The other possible argument would be that DOMA eliminates "ordered liberty" which is equally absurd.
The argument of the majority boils down to a bare desire to harm same sex married couples.
B. DOMA was not malicious
The Constitution neither forbids nor requires moral legislation. Previous rulings of this court require that a law which is only deemed unconstitutional on the basis of an alleged illicit motive for its passage should not be struck down.
Any argument that both the Legislature and President had malicious intent should be supported by a large body of evidence. The majority only offers a passing reference to the existence of such evidence.
DOMA solved the issue of how Federal taxes (among other things) can be handled when one State disagrees with another about the nature of a marriage. That is the whole reason for a definitional provision (such as Section 3 of DOMA).
DOMA preserved laws against unanticipated consequences. When spousal inheritance was passed by Congress it only reached opposite sex spouses, but current changes to State law could effect the Federal law (suddenly it would be extended to same sex spouses, an unanticipated consequence). That is stabalizing, not malicious.
The assertions of the majority that the Congress and President acted with malice is untrue. Defense (as in Defense of Marriage Act) is not to condemn, demean, or humiliate others, but to defend what already exists. Casual acusations that suggest otherwise demean the Supreme Court. It is appropriate to change law by election, not by asserting that elected officials are enemies of the human race.
The majority asserts that this case is limited to this type of same sex marriage and cites as support a case which explicitely was not supposed to support same sex marriage (though it did support sodomy). The thought that this case will not serve as a foundation for subsequent cases is erroneous.
The very arguments against DOMA can be applied to State's definition of marriage as not same sex equally as strongly. There is another shoe to drop and it is the requirement that all States allow same sex marriage.
The Constitution provides that we rule ourselves. DOMA has allowed that with large and heated debate over this issue resolving into a variety of laws across several states (and even opposite laws in the same state). This decision belongs with the People and not the courts.
ALITO'S DISSENT
I. Jurisdiction
The United States is not the proper Petitioner. Alito agrees with Scalia's analysis of jurisdiction with regard to the United States.
In order for BLAG to stand as the Petitioner, BLAG had to demonstrate that it had a direct stake in the outcome. As a representative of the House of Representatives, BLAG has standing because the House of Representatives has suffered an injury. Since legislation is Congress' central function, impairment in its ability to legislate is a grievous injury. Because the Second Circuit Court of Appeals struck down Section 3 of DOMA, the legislative function of the House became impaired and they are both injured by this and appropriate plaintiffs to the case therefore. In the narrow case of the Courts striking down an act of Congress and the Executive declining to defend the act, Congress has a standing to defend the undefended statute and has a right to do so.
II. Due Process is not at risk
There is no constitutional right to same sex marriage and no part of the constitution addresses the issue. The majority seems to argue substinative due process as a grant of the right to same-sex marriage. Unfortunately such an argument requires that the rights be deeply rooted in our Nation's history and tradition or implicit in the concept of ordered liberty. Neither of these arguments applies.
A new right is being requested of judges, not the legislature and judges have to address this issue with both caution and humility. The concept of same sex marriage is new and the impacts of such a concept has yet to be developed. No one is certain of the consequences, least of all judges. The establishment of such a right should be done through the legislature, not the judicial branch.
III. Equal Protection is not at risk
Equal protection is a judicial construct that is aimed at specific cases not conceptual issues like the definition of marriage. Equal protection has a very specific definition involving the need for a clear classification that is narrowly tailored to achieve a compelling government interest (several examples of such classifications are provided in both the positive and negative cases). In essence, if a classification is being made, it needs to be relevant and appropriate to the law without being arbitrary.
Classifications are also subject to a "rational-basis" review which means holding that the type of classification is sufficiently similar to a previous classification on which a ruling has already been made to apply that ruling to this case. In this case the majority is arguing that opposite sex is to marriage as white skin is to voting. That is a strong argument which, if upheld, makes anyone upholding traditional marriage a bigot.
In essence, the court is being asked to resolve two different views of marriage. Traditional (the older form) marriage is reserved for opposite sex couples in virtually every culture. The argument made by BLAG is that this structure of marriage facilitates child rearing, but there are other explanations. Consent-based marriage (the newer form) is a solemniziation of a mutual commitment between two persons. This view of marriage is consistent with existing popular culture and is the basis for the argument that excluding same sex marriage is gender discrimination.
The constitution is silent on this distinction and it is not the role of the Judiciary to give it voice.
The legislature, however, cannot be silent. The majority argues that Section 3 of DOMA infringes on State sovereignty. Justice Alito agrees that marriage is an issue for State to resolve and that the Judiciary should not involve itself in that definition.
DOMA, however, does not infringe on State sovereignty. States can still pass same sex marriage or not without any limitation from Section 3 of DOMA. Section 3 of DOMA does identify a class of people that Congress felt should be fostered with special benefits because it is a unique type of economic unit. Since Congress has the power to enact the laws effected by Section 3 of DOMA, it also has the power to identify the group affected by that law.
