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 Coolidge
    @MikeH

    Rome is burning and our intellectuals can only point out that they are using improper matches.

    • #1
  2. Profile Photo Inactive
    @TheDowagerJojo
    Butters: 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. · 20 minutes ago

    Edited 6 minutes ago

    Abso-frickin-lutely.

    Why should people who have not had the good fortune to find a partner be stigmatized and financially penalized in that way? Or even people who don’t choose to marry?  Don’t they get equal protection of the law?  

    • #2
  3. Profile Photo Inactive
    @SalvatorePadula
    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.

    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. · 30 minutes ago

    Post of the day, so far.

    • #3
  4. Profile Photo Inactive
    @Herbert

    “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.”

    Is this the same Scalia who sided with the majority in the Shelby County case to rewrite the VRA?

    • #4
  5. Profile Photo Inactive
    @CommodoreBTC
    Jojo

    Abso-frickin-lutely.

    Why should people who have not had the good fortune to find a partner be stigmatized and financially penalized in that way? Or even people who don’t choose to marry?  Don’t they get equal protection of the law?   · 3 minutes ago

    I’m determined to make single rights the next great civil rights movement. Any ideas for a flag?

    For too long we have been treated as second class citizens. Just look at this long list of benefits we are denied simply because of our marital preference. As Justice Kennedy said, no benefit “overcomes the purpose and effect to disparage and to injure” people like me.

    • #5
  6. Profile Photo Inactive
    @MikeLaRoche

    Newt Gingrich was right.

    • #6
  7. Profile Photo Coolidge
    @MikeH
    Butters

    Jojo

    Abso-frickin-lutely.

    Why should people who have not had the good fortune to find a partner be stigmatized and financially penalized in that way? Or even people who don’t choose to marry?  Don’t they get equal protection of the law?   · 3 minutes ago

    I’m determined to make single rights the next great civil rights movement. Any ideas for a flag?

    For too long we have been treated as second class citizens. Just look at this long list of benefits we are denied simply because of our marital preference. As Justice Kennedy said, no benefit “overcomes the purpose and effect to disparage and to injure” people like me. · 0 minutes ago

    Edited 0 minutes ago

    As one privy to those benefits, I’d totally back you up on this.

    • #7
  8. Profile Photo Thatcher
    @JamesGawron

    John,

    Very, very interesting.   Once again Roberts twists himself into a pretzel.  Weak decision, weakly reasoned.  

    I am on the other side of this one and feel that any society has the right to protect its social fabric when ultimate institutions such as marriage are being hijacked.

    We agree on Roberts.  Whatever he is up to it isn’t going to get him into the Legal History texts as a great Chief Justice.

    Regards,

    Jim

    • #8
  9. Profile Photo Inactive
    @SalvatorePadula
    Mike H: Rome is burning and our intellectuals can only point out that they are using improper matches. · 29 minutes ago

    Accepting for the sake of argument that that is an accurate statement, if the intellectual in question is a leading expert on matches why is that surprising or inappropriate?

    I’m a lawyer, though not of Yoo’s stature. I’m constantly surprised that people on Ricochet seem opposed to lawyers analyzing legal issues from a legal perspective.

    • #9
  10. Profile Photo Coolidge
    @MikeH
    Salvatore Padula

    Mike H: Rome is burning and our intellectuals can only point out that they are using improper matches. · 29 minutes ago

    Accepting for the sake of argument that that is an accurate statement, if the intellectual in question is a leading expert on matches why is that surprising or inappropriate?

    I’m a lawyer, though not of Yoo’s stature. I’m constantly surprised that people on Ricochet seem opposed to lawyers analyzing legal issues from a legal perspective. · 2 minutes ago

    It’s not surprising, just disappointing. It would be kind of like me explaining the thermodynamics of a nuclear bomb being dropped on NYC after the fact. “I’m just analyzing it from a physics perspective.”

    • #10
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    @UmbraFractus

    So, if “animus” is a valid reason to strike down a law, does that mean the 2013 tax hikes are unconstitutional?

    • #11
  12. Profile Photo Member
    @MBF
    Herbert Woodbery: Is this the same Scalia who sided with the majority in the Shelby County case to rewrite the VRA? · 25 minutes ago

    I thought they told congress to rewrite portions of the VRA?

    • #12
  13. Profile Photo Inactive
    @SalvatorePadula
    Mike H

    Salvatore Padula

    Mike H: Rome is burning and our intellectuals can only point out that they are using improper matches. · 29 minutes ago

    Accepting for the sake of argument that that is an accurate statement, if the intellectual in question is a leading expert on matches why is that surprising or inappropriate?

    I’m a lawyer, though not of Yoo’s stature. I’m constantly surprised that people on Ricochet seem opposed to lawyers analyzing legal issues from a legal perspective. · 2 minutes ago

    It’s not surprising, just disappointing. It would be kind of like me explaining the thermodynamics of a nuclear bomb being dropped on NYC after the fact. “I’m just analyzing it from a physics perspective.” · 4 minutes ago

    As you’re a physicist, I’d be happy to get the perspective your particular expertise can provide. You’re right that it wouldn’t be the most important aspect of the destruction of New York, but it would add to my understanding of the event.

    • #13
  14. Profile Photo Coolidge
    @MikeH
    Salvatore Padula

    Mike H

    It’s not surprising, just disappointing. It would be kind of like me explaining the thermodynamics of a nuclear bomb being dropped on NYC after the fact. “I’m just analyzing it from a physics perspective.” · 4 minutes ago

    As you’re a physicist, I’d be happy to get the perspective your particular expertise can provide. You’re right that it wouldn’t be the most important aspect of the destruction of New York, but it would add to my understanding of the event. · 7 minutes ago

    I feel there’s a punchline missing from Yoo’s analysis.

    1.) The Constiution has been violated.

    2.) ?????

    3.) Profit!

    It would be nice if there was effective recourse articulated by someone as esteemed as him.

    • #14
  15. Profile Photo Coolidge
    @MikeH
    Salvatore Padula

    As you’re a physicist, I’d be happy to get the perspective your particular expertise can provide. You’re right that it wouldn’t be the most important aspect of the destruction of New York, but it would add to my understanding of the event. · 15 minutes ago

    I mean no disrespect, but I’m afraid lawyers have an unhealthy respect for “expert” opinion. It’s true that my credentials signal I would likely give good analysis, but whatever I say is only as correct as it is. I shouldn’t be given undue reverence simply because of the degrees I’ve earned.

    • #15
  16. Profile Photo Inactive
    @SalvatorePadula
    Mike H

     

    I mean no disrespect, but I’m afraid lawyers have an unhealthy respect for “expert” opinion. It’s true that my credentials signal I would likely give good analysis, but whatever I say is only as correct as it is. I shouldn’t be given undue reverence simply because of the degrees I’ve earned. · 5 minutes ago

    No disrespect felt. I wouldn’t expect your expertise in the physics of a nuclear detonation to go beyond the technical. I wouldn’t, for example, place greater weight on your opinion of the merits of bombing New York, but I would defer to your assessment of the bomb being poorly made.

    I’m not asking for deference to lawyers opinions on the merits of laws, but some recognition that a lawyer might have a better perspective for answering questions of legal technicalities seems reasonable to me.

    • #16
  17. Profile Photo Moderator
    @JamesOfEngland
    Mike H

    Salvatore Padula

    Mike H….

    As you’re a physicist, I’d be happy to get the perspective your particular expertise can provide. You’re right that it wouldn’t be the most important aspect of the destruction of New York, but it would add to my understanding of the event. · 7 minutes ago

    I feel there’s a punchline missing from Yoo’s analysis.

    1.) The Constiution has been violated.

    2.) ?????

    3.) Profit!

    It would be nice if there was effective recourse articulated by someone as esteemed as him. · 15 minutes ago

    I’m not sure that you’re grasping the point of Ricochet. We mostly chat for entertainment and to inform ourselves. Occasionally we do something useful, like buy Linda a van, but if you’re not interested in analysis that is not clearly actionable, then I imagine most posts will appear dull. Indeed, the action advice I remember most clearly was Rob Long telling people not to volunteer for the election as it was “too late”, a sentiment supremely unhelpful to marginal candidates. In general, then, the practical action side of Ricochet seems actively negative.

    • #17
  18. Profile Photo Coolidge
    @MikeH
    Salvatore Padula

    No disrespect felt. I wouldn’t expect your expertise in the physics of a nuclear detonation to go beyond the technical. I wouldn’t, for example, place greater weight on your opinion of the merits of bombing New York, but I would defer to your assessment of the bomb being poorly made.

    I’m not asking for deference to lawyers opinions on the merits of laws, but some recognition that a lawyer might have a better perspective for answering questions of legal technicalities seems reasonable to me.

    The analysis was fine as far as it went, but it would be nice if there was a little less stoicism about the process being violated. There should be recourse.  If there isn’t, then something is wrong with the system. I would expect a lawyer to have some better inside information on what we could actually do about the problem.

    • #18
  19. Profile Photo Inactive
    @SalvatorePadula
    Mike H

    Salvatore Padula

    Mike H

    It’s not surprising, just disappointing. It would be kind of like me explaining the thermodynamics of a nuclear bomb being dropped on NYC after the fact. “I’m just analyzing it from a physics perspective.” · 4 minutes ago

    As you’re a physicist, I’d be happy to get the perspective your particular expertise can provide. You’re right that it wouldn’t be the most important aspect of the destruction of New York, but it would add to my understanding of the event. · 7 minutes ago

    I feel there’s a punchline missing from Yoo’s analysis.

    1.) The Constiution has been violated.

    2.) ?????

    3.) Profit!

    It would be nice if there was effective recourse articulated by someone as esteemed as him. · 18 minutes ago

    I agree it would be nice if both Yoo and Epstein were more involved in the discussion following their posts, but my understanding of Yoo’s purpose in this post was to point out the weakness and inconsistencies of the specific opinion.

    • #19
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    @FullSizeTabby
    EstoniaKat: Seems to me that both decisions were victories (despite the reasoning) for States’ rights. Am I missing something? · 10 hours ago

    Edited 10 hours ago

    Yes. Both decisions only used the language of States’ rights. The actual decisions favor totalitarianism. The California case concluded that an autocratic governor can nullify the vote of the people in CA. The federal Defense of Marriage Act (DOMA) decision was that no opposition to same-sex-marriage will be allowed, so no state will be able to defend its decision not to impose same sex “marriage” on everyone who deals with “married” people.

    • #20
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    @ScarletPimpernel

    Building on a comment in Adam Freedman’s thread, I’ll reiterate my point that the Court has just accorded to states the right to create protected classes.

    In light of America’s long history of anti-Catholic animus, it would be entirely reasonable for a state to take special precautions to ensure that nothing it its laws discriminate against Catholics.

    Item number one would be policies that make it difficult or impossible for Catholic groups to run adoption services.  In particular, the belief that only bigots hold that marriage is between one man and one woman only is itself a bigoted belief–the latest in America’s long history of anti-Catholicism.

    • #21
  22. Profile Photo Coolidge
    @MikeH
    James Of England

    I’m not sure that you’re grasping the point of Ricochet. We mostly chat for entertainment and to inform ourselves. Occasionally we do something useful, like buy Linda a van, but if you’re not interested in analysis that is not clearly actionable, then I imagine most posts will appear dull. Indeed, the action advice I remember most clearly was Rob Long telling people not to volunteer for the election as it was “too late”, a sentiment supremely unhelpful to marginal candidates. In general, then, the practical action side of Ricochet seems actively negative.

    And my point is, the fact that it is “too late” should get us thinking about alternatives. I agree there is nothing we can do. I just feel many of the Ricocheti are convinced we are doing something.

    If we are inconsequential under the current system; if our rights are being violated systematically, we need to stop pretending that it’s possible to fix it though the current system, or that the current system is the only way.

    • #22
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    @PlatosRetweet

    DOMA always seemed weak to me, and a mistake for the traditional marriage side. It was (1) a mere act of Congress, subject to the whims of future Congresses; (2) subject to review by Anthony Kennedy; and (3) an excuse for the traditionalists to sit around doing nothing on the national scale, while the pro-SSM side swayed opinion in the national media.

    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.

    Personally, I think the yearning of some gays and lesbians for traditional permanent monogamous relationships — those who believe that’s what marriage should entail — is good for society, and fundamentally conservative in the non-religious sense.

    Better for society might be a protective constitutional wall around two-person M/F marriages, while preserving state-level leeway for benefit-comprehensive civil union contracts for all singles who wish to become couples but not husband-and-wife, regardless of orientation.

    What would be the wording of a properly constructed traditional marriage amendment to the U.S. Constitution?

    • #23
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    @ScarletPimpernel
    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.

    But, if memory serves, the Left promised that an amendment would not be needed. A statute would be enough. Who could doubt that the federal government has the right to define marriage for the purpose of federal law?  They gave their word. Why would we doubt them! (See immigration reform (amnesty/ fence building), tax hikes (and spending cuts to follow), etc.

    • #24
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    @ScarletPimpernel

    P.S. By the Court’s logic, if the federal government may not define marriage for the purpose of federal tax law, doesn’t that necessarily point to the conclusion that the feds may not discriminate between married and single for tax purposes.

    • #25
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    @ScottAbel

    Seems to me that both decisions were victories (despite the reasoning) for States’ rights. Am I missing something?

    • #26
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    @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

    Yes, because Prop 8 let stand a lower court decision that a state enacted referendum violated the Federal constitution. Roberts just seized the opportunity to make a point about standing, which Ginsburg, Breyer and Kagan were happy to join. If any state is dumb enough to appeal a law that does not recognize SSM to the Supreme Court, the same five justices that struck down DOMA are waiting to strike down the state law as well.

    State sovereignty will be respected so long as it conforms to the views of five justices.

    • #27
  28. Profile Photo Moderator
    @JamesOfEngland
    Mike H

    James Of England

    And my point is, the fact that it is “too late” should get us thinking about alternatives. I agree there is nothing we can do. I just feel many of the Ricocheti are convinced wearedoing something.

    If we are inconsequential under the current system; if our rights are being violated systematically, we need to stop pretending that it’s possible to fix it though the current system, or that the current system is the only way. ·

    There is probably nothing to be done about the federal tax treatment of SSMs short of having states repeal SSM, which strikes me as implausible for the foreseeable future. I’m not sure many Ricochetti are persuaded that we are doing something on the narrow battlefield of DOMA Section 3.

    There are plenty of areas where we can, and should, be doing things; if you’re stuck for useful actions, contacting a group that protects rights you find to be important, or contacting a politician you support would be a great first step in finding something useful you can do for them.

    • #28
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    @ScottAbel
    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

    Yes, because Prop 8 let stand a lower court decision that a state enacted referendum violated the Federal constitution. Roberts just seized the opportunity to make a point about standing, which Ginsburg, Breyer and Kagan were happy to join. If any state is dumb enough to appeal a law that does not recognize SSM to the Supreme Court, the same five justices that struck down DOMA are waiting to strike down the state law as well.

    Too inside baseball. Can you boil this down to non-lawyer language?

    • #29
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    @WesternChauvinist
    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.

    Better for society might be a protective constitutional wall around two-person M/F marriages, while preserving state-level leeway for benefit-comprehensive civil union contracts for all singles who wish to become couples but not husband-and-wife, regardless of orientation.

    What would be the wording of a properly constructed traditional marriage amendment to the U.S. Constitution? 

    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 very interesting just before the two hour mark.

    • #30

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