Wednesday, June 26, 2013

The Demise Of DOMA

While I agree with the Supreme Court's 5-4 decision declaring Section 3 of the Defense of Marriage Act unconstitutional, I was curious what the four dissenters had to say.

Rather than discuss the effect of DOMA, Chief Justice Roberts says the court lacks jurisdiction to consider the case and argues that the law was not intended to harm. 

"The majority sees a more sinister motive, pointing out that the Federal Government has generally (though not uniformly) deferred to state definitions of marriage in the past. That is true, of course, but none of those prior state­by-state variations had involved differences over something—as the majority puts it—“thought of by most people as essential to the very definition of [marriage] and to its role and function throughout the history of civilization.” Ante, at 13. That the Federal Government treated this fundamental question differently than it treated variations over consanguinity or minimum age is hardly surprising—and hardly enough to support a conclusion that the “principal purpose,” ante, at 22, of the 342 Representatives and 85 Senators who voted for it, and the President who signed it, was a bare desire to harm. Nor do the snippets of legislative history and the banal title of the Act to which the majority points suffice to make such a showing. At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry."

Justice Scalia, with Justice Thomas and Chief Justice Roberts joining in Part I, also claims the court does not have the power to decide this case. This hinges on the fact that the government refused to defend DOMA, the US District Court and the Second Court of Appeals found for the plaintiff, Edith Windsor, and declared DOMA unconstitutional. Yet the government, agreeing to the outcome but refusing to give Windsor the tax refund, filed an appeal to have the Supreme Court decide the issue. (The Bipartisan Legal Advisory Group, created by the House of Representatives, was not allowed to represent the United States since the government was already represented by the US Department of Justice, which, again, claimed DOMA was unconstitutional and was not defending it. The US District Court permitted BLAG to intervene as an interested party in the case.) Hence, according to Justice Scalia, since the outcome is undisputed the court should not decide the case. That seems to be a valid point, yet the court agreed to take the case on in the first place so they have to do something, right? Then, strangely, Justice Scalia's sour grapes come through when he tries to taint the majority by bizarrely claiming they must be considering a foreign constitution to reach their decision.

"The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit. See, e.g., Basic Law for the Federal Republic of Germany, Art. 93."

It's as if Justice Scalia is tossing out a piece of red meat for the extreme right wing.

Justice Alito, joined in part by Justice Thomas in parts II and III, also agrees the court does not have the authority to decide, but unlike the other dissenters, he directly addresses same-sex marriage in parts II and III.

"Our Nation is engaged in a heated debate about same ­sex marriage. That debate is, at bottom, about the nature of the institution of marriage. Respondent Edith Windsor, supported by the United States, asks this Court to intervene in that debate, and although she couches her argument in different terms, what she seeks is a holding that enshrines in the Constitution a particular understanding of marriage under which the sex of the partners makes no difference. The Constitution, however, does not dictate that choice. It leaves the choice to the people, acting through their elected representatives at both the federal and state levels. I would therefore hold that Congress did not violate Windsor’s constitutional rights by enacting §3 of the Defense of Marriage Act (DOMA), 110 Stat. 2419, which defines the meaning of marriage under federal statutes that either confer upon married persons certain federal benefits or impose upon them certain federal obligations. 
It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation’s history and tradition. In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941. Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000.

What Windsor and the United States seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. Faced with such a request, judges have cause for both caution and humility.
At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are certainly not equipped to make such an assessment. The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials."

Justice Alito also seems to be putting out some red meat with his several references to "unelected judges". How odd that Justice Alito is unfamiliar with unelected judges in the Supreme Court ruling on a marriage-related law enacted by peoplewho presumably controlled their own destiny and acted through their elected representatives.

"While modern cultural changes have weakened the link between marriage and procreation in the popular mind, there is no doubt that, throughout human history and across many cultures, marriage has been viewed as an exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship. 

The other, newer view is what I will call the “consent­ based” vision of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons. At least as it applies to heterosexual couples, this view of marriage now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage. Proponents of same-sex marriage argue that because gender differentiation is not relevant to this vision, the exclusion of same-sex couples from the institution of marriage is rank discrimination.
All that §3 does is to define a class of persons to whom federal law extends certain special benefits and upon whom federal law imposes certain special burdens. In these provisions, Congress used marital status as a way of defining this class—in part, I assume, because it viewed marriage as a valuable institution to be fostered and in part because it viewed married couples as comprising a unique type of economic unit that merits special regulatory treatment. Assuming that Congress has the power under the Constitution to enact the laws affected by §3, Congress has the power to define the category of persons to whom those laws apply."

Here is part of the syllabus where the effect of DOMA is addressed:

"DOMA’s history of enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, conferredby the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. BLAG’s arguments are just as candid about the congressional purpose.DOMA’s operation in practice confirms this purpose. It frustrates New York’s objective of eliminating inequality by writing inequality into the entire United States Code.

DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect."

And there you have it. Section 3 of the Defense of Marriage Act stating "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife," is null and void.

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