An Embarassing Decision on DOMA

 

Today’s gay marriage opinions deflated the balloon on the Prop 8 case, but made DOMA the centerpiece. On first glance, the DOMA case, United States v. Windsor, is embarrassingly deficient. It does not identify the right at stake clearly, it does not specify the standard of review, and it does not explain why Congress is assumed to be acting purely out of bad motives.

Most of the opinion is devoted to a discussion of federalism, but most of it is tangential. The Court cannot quite hold that Congress is not allowed to adopt definitions of words like “marriage” for federal law purposes, so it instead says that the federal definition shows an intent by Congress to harm gays. The conclusion assumes, without explicitly saying so, that 342 Members of the House, 85 Senators, and President Bill Clinton were all guilty of anti-gay bias in 1996, when DOMA was enacted. As Chief Justice Roberts says, “I would not tar the political branches with bigotry.”  

Once the majority can claim an ill motive on the part of Congress, any law making gays worse off is immediately struck down. There’s no analysis of the government’s other purposes and no questions about whether the law is tailored to meet those purposes (an issue on which the Court spent so much time and energy in the affirmative action and voting rights cases).  

In this respect, Windsor is actually quite an expansion from Lawrence v. Texas, where the Court struck down Texas’s anti-sodomy law because, it found, the only motivation of the law was hatred for gays. Here, the court says that Congress had a desire to mistreat homosexuals, but it cannot claim, as it did earlier, that this was its only purpose. There is little doubt that Congress had other, legitimate motives that did not have to do with discrimination, such as standardizing federal law across the nation, reducing federal costs, and so on.  

On this score, gays have become a constitutionally-protected class afforded higher protections than even racial minorities — which shows how the Windsor majority has contorted the Constitution to reach its preferred result. I happen to agree with the policy result — allowing gays to marry — but the Constitution does not allow the Court to impose it on the country in this way. 

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  1. Profile Photo Inactive
    @JamesOfEngland
    EstoniaKat

    ShellGamer

    EstoniaKat: Seems to me that both decisions were victories (despite the reasoning) for States’ rights. Am I missing something? · 1 minute ago

    Edited 0 minutes ago

    Too inside baseball. Can you boil this down to non-lawyer language? · 16 minutes ago

    If I understand your claim correctly, you were saying that a state government’s ability to strike down a state statute by not defending it was an aspect of states rights?

    Shell was pointing out that although that choice is given to governors  by the Prop. 8 decision, non-SSM states may have lost the ability to maintain their current law for any longer than it takes for the relevant case to hit the Court (I’m not sure how true this is, but that was, I believe, the claim).

    In other words, with regard to SSM, a choice was granted, but the choice can only run one way, and other choices were removed.

    • #31
  2. Profile Photo Inactive
    @JamesOfEngland
    Western Chauvinist

    Jim_K: …

    Instead of DOMA,Congress could have sent a well-written constitutional amendment to the states. In some future (R) majority of both houses of Congress, if that ever happens, it remains the only logical course for traditional marriage stalwarts.

    Dennis Prager thought so too when he and others testified before Congress on May 15, 1996.

    I haven’t listened to the whole thing, but the doctor of jurisprudence from Amherst is veryinteresting just before the two hour mark. · 8 minutes ago

    It is often extremely difficult to know at what level to pitch one’s paranoia, particularly when one is concerned about long distance trends.

    • #32
  3. Profile Photo Member
    @WesternChauvinist
    James Of England

    Western Chauvinist

    Jim_K: …

    Instead of DOMA,Congress could have sent a well-written constitutional amendment to the states. In some future (R) majority of both houses of Congress, if that ever happens, it remains the only logical course for traditional marriage stalwarts.

    Dennis Prager thought so too when he and others testified before Congress on May 15, 1996.

    I haven’t listened to the whole thing, but the doctor of jurisprudence from Amherst is veryinteresting just before the two hour mark. · 8 minutes ago

    It is often extremely difficult to know at what level to pitch one’s paranoia, particularly when one is concerned about long distance trends. 

    That’s exactly why the Amherst guy addressed the teleological basis for marriage rather than making the slippery slope argument. His point being, if the law can’t limit marriage on a male/female basis, virtually no other limits can stand. It’s logic, not prediction.

    In Dennis’ rant, he suggests it’s also discriminatory — against the very nature — of bisexuals to limit marriage to two. A bisexual is only “completed” by marriage to one of each.

    I’ll make a prediction, though. Elimination of limits will not end_well.

    • #33
  4. Profile Photo Member
    @Herbert

    In Dennis’ rant, he suggests it’s also discriminatory — against the very nature — of bisexuals to limit marriage to two. A bisexual is only “completed” by marriage to one of each.

    The question becomes, what is more damaging, limits on marriage, or marriage without limits.

    Which leads to the question of who gets to decide what is more harmful, restricting the ability of some to get married or stretching the idea of marriage to previously excluded groups.

    • #34
  5. Profile Photo Inactive
    @PlatosRetweet

    “A bisexual is only “completed” by marriage to one of each.”

    Or to one of each plus another bisexual?

    And any foursome so inclined might seek out another.

    Pretty soon you’ve got a roomful of Moonies, or all of Vermont, hitched together, sharing income, property, government benefits, and turns on the Politburo. Who needs socialism, if the courts someday open the door to (Very) Big Love?

    • #35
  6. Profile Photo Inactive
    @MikeH
    Jim_K:”A bisexual is only “completed” by marriage to one of each.”

    Or to one of each plus another bisexual?

    And any foursome so inclined might seek out another.

    Pretty soon you’ve got a roomful of Moonies, or all of Vermont, hitched together, sharing income, property, government benefits, and turns on the Politburo. Who needs socialism, if the courts someday open the door to (Very) Big Love? · 0 minutes ago

    Okay… which part of consensual sharing are are you opposed to? It’s not Socialism if it’s not imposed.

    • #36
  7. Profile Photo Inactive
    @JamesOfEngland
    Western Chauvinist

    James Of England

    It is often extremely difficult to know at what level to pitch one’s paranoia, particularly when one is concerned about long distance trends. 

    …..

    In Dennis’ rant, he suggests it’s also discriminatory — against the verynature– of bisexuals to limit marriage to two. A bisexual is only “completed” by marriage to one of each.

    I’ll make a prediction, though. Elimination of limits will not end_well. · 2 hours ago

    Sorry, I’d thought he was arguing for the necessity of an Amendment. If he was arguing that bisexuals are intrinsically non-monogamous then I would not have implied agreement, or even respect. The fact that I’m attracted to both southern and mid-western women doesn’t mean that I’m not completed by my wife (who is neither of those things). The pool of people you’re attracted to has nothing to do with your desire and ability to be faithful.

    Imagining what a bisexual person might be like and then drawing up laws around that is precisely the sort of thing that gets conservatives in trouble. If you’re that unfamiliar with bisexuality in practice, you shouldn’t be instructing others.

    • #37
  8. Profile Photo Inactive
    @UmbraFractus
    EstoniaKat: Seems to me that both decisions were victories (despite the reasoning) for States’ rights. Am I missing something? · 16 hours ago

    Edited 16 hours ago

    In the letter-of-the-law sense, it probably was technically a victory for States rights, but the Prop 8 decision in particular is a huge blow for popular sovereignty. As Ace of Spades points out, thanks to the SCOTUS, the political class can now veto any popular referendum they don’t like simply by refusing to defend it in court. According to this case, if the state chooses not to defend a policy, no one else can, which effectively renders the referendum process meaningless.

    • #38
  9. Profile Photo Inactive
    @Mendel

    The notion that the Supreme Court can and should divine the moral intent behind a piece of legislation is the slipperiest slope of all.

    There are plenty of laws which appear to be value-neutral but whose enactment was the direct result of malice toward a certain group (including many tax laws).  At the same time, other laws can have malicious effects but have been enacted with the purest of intentions.

    If the Supreme Court decides it is capable of looking into Congress’ eyes and getting a sense of its soul, we are truly screwed.

    • #39
  10. Profile Photo Inactive
    @BlueAnt

    Isn’t it convenient how the Supreme Court only gets very concerned with federalism when it’s in service of a preferred policy outcome?

    • #40
  11. Profile Photo Inactive
    @JeffY

    We need a constitutional amendment stripping the court of judicial review powers.

    • #41
  12. Profile Photo Member
    @DrewInWisconsin

    . . . and it does not explain why Congress is assumed to be acting purely out of bad motives.

    Ya gotta admit, it’s a safe assumption.

    • #42
  13. Profile Photo Inactive
    @CommodoreBTC

    As a single person I resent the unequal preferential treatment afforded to gay and straight married couples.

    Every tax benefit and entitlement increase afforded to gay and straight married people is an indication of anti-single bias by the President and Congress. They clearly acted out of malice toward my fellow singles, and these laws should be struck down as a violation of The 5th Amendment.

    • #43
  14. Profile Photo Inactive
    @JamesOfEngland
    John Yoo: It does not identify the right at stake clearly, it does not specify the standard of review, and it does not explain why Congress is assumed to be acting purely out of bad motives.

    My heart sank when I heard that Kennedy had written the opinion. If Ginsberg or Breyer had written it, I’d have disagreed with the ruling, but it would, at least, have been a judicial opinion within the general meaning of the term.  You’d be able to take the principles from it and apply them to future cases. Kennedy seems unable to restrain himself from writing bloviating op-eds in lieu of opinions.

    • #44
  15. Profile Photo Inactive
    @MikeH
    John Yoo:

    — but the Constitution does not allow the Court to impose it on the country in this way.

    And yet somehow they get away with it, like it matters what the Constitution “allows.” To wax nostalgic about what the Supreme Court is and is not allowed to do, as if stating it is enough, is giving up the game by playing along. It doesn’t matter if you or anyone disapproves.

    The Constitution has failed. It’s time to consider other options.

    • #45
  16. Profile Photo Member
    @CivilSense
    I think that Scalia’s dissent is brilliant. Here is the first paragraph:“The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?”Is it time for a Law Talk soon to dissect the impact of yesterday’s and today’s decisions?
    • #46
  17. Profile Photo Member
    @

    Will there soon be quotas for gays in the military, fed jobs, universities, med school, etc.?  If so, what should that percentage be – 10%?

    If a man on active duty gets paid, say $25K, to marry some random dude that has cancer.  Does the guy suffering with cancer get free medical care at our military hospitals?

    • #47
  18. Profile Photo Inactive
    @JMaestro
    James Of England

    John Yoo: It does not identify the right at stake clearly, it does not specify the standard of review, and it does not explain why Congress is assumed to be acting purely out of bad motives.

    … Kennedy seems unable to restrain himself from writing bloviating op-eds in lieu of opinions. · 10 minutes ago

    More like encyclicals. Kennedy’s not applying the law, he’s enforcing an orthodoxy. DOMA was good dogma before the schism — now it’s heresy. Burn the witch.

    In other words, Kennedy cannot articulate his standard of review — not without conceding that the Establishment Clause has been flouted.

    • #48
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