The DOMA Case — Part 2

by Ed Whelan

Continuing from Part 1 on the merits (rather than the jurisdiction question, on which the Court divided 6-3) in the DOMA ruling:

4. Most of the Chief’s brief dissent is dedicated to emphasizing that the majority opinion doesn’t resolve the question whether traditional marriage laws in the states are unconstitutional. The Chief also adds these observations, which are similar to points Scalia made (summarized in 3.c and d of my Part 1 post):

“Interests in uniformity and stability amply justified Congress’s decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world.

“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 state-by-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.’ 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’ 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.”

5. Justice Alito also makes some fine points in his dissent (joined in the merits portion by Thomas) (some citations and internal quotations marks omitted):

a. “The Court’s holding that ‘DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution’ suggests that substantive due process may partially underlie the Court’s decision today. But it is well established that any ‘substantive’ component to the Due Process Clause protects only those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition. It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation’s history and tradition.” (Scalia made a similar point.)

b. “Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects.… The long-term consequences of [same-sex marriage] are not now known and are unlikely to be ascertainable for some time to come.… [J]udges are certainly not equipped to make such an assessment.”

c. “[T]he Constitution simply does not speak to the issue of same-sex marriage.” It does not codify either the traditional, or conjugal, view of marriage or the mutual-commitment view.

d. Section 3 of DOMA does not encroach on the prerogatives of the states. “Section 3 does not prevent any State from recognizing same-sex marriage or from extending to same-sex couples any right, privilege, benefit, or obligation stemming from state law. 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.”