According to this Washington Post article, Attorney General Eric Holder imagines that his decision two years ago to have the Department of Justice refuse to carry out its duty to defend the Defense of Marriage Act has been “vindicated” by the Supreme Court decision striking down DOMA. His former spokesman praises that decision as “a courageous political decision … that was completely grounded in the law.”

Oh, really.

Perhaps the only point on which the majority and the dissent in U.S. v. Windsor appear to agree is that Holder acted irresponsibly in failing to defend DOMA. In his majority opinion (slip op. at 12), Justice Kennedy laments that the “Executive’s failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions has created a procedural dilemma” and “poses grave challenges to the separation of powers.” In his dissent, Justice Scalia states (slip op. at 6 n. 2), “There is no justification for the Justice Department’s abandoning the law in the present case.”

When I presented my House and Senate testimony explaining that Holder’s decision to abandon defense of DOMA “reflects a sharp departure from the Department of Justice’s longstanding practice of defending congressional enactments” and this his explanation of that decision “cannot be taken seriously,” a number of very liberal Democratic appellate lawyers, with DOJ experience, who opposed DOMA told me privately that they completely agreed with me that Holder had acted irresponsibly. The Post article reveals that acting Solicitor General Neal Katyal and other “key department lawyers”—including “career lawyers”—strongly objected to Holder’s decision. If anyone has seriously made the case that Holder acted responsibly, I haven’t seen it.

Holder evidently believes that the fact that the Court ruled his way somehow vindicates his decision not to defend DOMA. But no one—not even Holder—has taken the position that DOJ is justified in not defending a statute simply because it believes or predicts that the Court will invalidate the statute. So Holder’s imagined vindication rests on an elementary error of logic.

As for Holder’s supposed courage: It’s touching to see that Holder’s former flack remains a loyal lapdog, but I would have thought that courage meant doing one’s duty in the face of pressure and at the expense of popularity, not abandoning one’s duty and caving to pressure.

As Andy McCarthy has documented from the beginning, Holder is a political hack and a disgrace.

2000—In sharp defiance of precedent governing facial challenges, the Supreme Court, by a vote of 5 to 4, rules in Stenberg v. Carhart that Nebraska’s ban on partial-birth abortion is unconstitutional. (As discussed here, the Court’s 2007 ruling on the federal partial-birth abortion ban in Gonzales v. Carhart corrects Stenberg’s error on the standard for facial challenges.)

2000—When does a criminal law setting forth a content-based prohibition on speech not violate the Supreme Court’s First Amendment precedents? When it suppresses speech by opponents of abortion. As Justice Scalia states in dissent from the Court’s ruling in Hill v. Colorado, “like the rest of our abortion jurisprudence, today’s decision is in stark contradiction of the constitutional principles we apply in all other contexts.”

2004—In Rasul v. Bush, a majority of the Supreme Court rules that the federal habeas statute—which authorizes federal district courts, “within their respective jurisdictions,” to entertain habeas applications by persons claiming to be held in custody in violation of the laws of the United States—may properly be invoked by aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This “judicial adventurism of the worst sort” contradicts a longstanding precedent and, as Justice Scalia points out in dissent, has “breathtaking” consequences, as it permits aliens captured in foreign theaters of active combat to bring habeas petitions against the Secretary of Defense and thus enables those aliens to “forc[e] the courts to oversee one aspect of the Executive’s conduct of a foreign war.”

By a vote of 5 to 3, the en banc Tenth Circuit today reversed the district judge’s ruling (which I criticized here) that denied Hobby Lobby’s motion for a preliminary injunction against the HHS mandate that would require it to provide its employees insurance coverage for abortifacients.

The five judges in the majority agree that Hobby Lobby (and Mardel, owned by the same family) had demonstrated a likelihood of success on their claim under the federal Religious Freedom Restoration Act and had satisfied the irreparable-harm prong of the preliminary-injunction standard. Four of the five judges would resolve the remaining two factors (balance of equities and public interest) in Hobby Lobby’s favor, while the fifth would remand the case to the district court for evaluation of those two factors. Because that fifth vote is controlling, the Tenth Circuit is remanding the case to the district court.

The ruling represents a major victory for the straightforward proposition that for-profit corporations have rights under RFRA. (My law-review essay on the general proposition that the HHS mandate violates RFRA is here.)

For those keeping score at home: The majority opinion is authored by Bush 43 appointee Timothy Tymkovich and is joined by three other Republican appointees and an Obama appointee, Robert Bacharach (who is the fifth judge referred to above).

The opinions are over 160 pages. I’ll do a supplemental post when I’ve reviewed them.

We could use good news around these parts, and here’s some that’s very welcome: Hobby Lobby has won an appeal to the en banc Tenth Circuit in its suit against HHS Secretary Sebelius for imposing the contraception/sterilization/abortifacient mandate on the company’s provision of health insurance to its employees, contrary to the religious conscience of the Christian owners of the business.  The case continues, but in a much more favorable posture now.  More details here at the website of the Becket Fund, whose tireless and persuasive lawyers are today’s heroes for the defense of freedom and the Constitution.  Bravo for Kyle Duncan and Mark Rienzi!

Who has better displayed fidelity to the ideals of our constitutional republic, the supporters of traditional marriage (formerly known simply as marriage) or the proponents of same-sex marriage? Consider the histories of DOMA and Prop 8:

In 1996, defenders of marriage respond to judicial mischief against marriage by drafting and proposing the Defense of Marriage Act. DOMA wins overwhelming majorities in both Houses of Congress—85 to 14 in the Senate and 342 to 67 in the House. Among its supporters are many strong advocates of gay rights, including President Clinton, who signs DOMA into law, and then-senator Joe Biden.

This modest measure merely reaffirms and makes crystal clear what Congress had always meant by the term marriage in provisions of federal law: a male-female union. DOMA doesn’t intrude at all on a state’s authority to regulate marriage under state law. It doesn’t nullify or prohibit any marriages, or in any other respect preempt the operation of state law. On the contrary, it leaves the states free to define, or redefine, marriage as they please.

Initial litigation attacks against DOMA fail. But then President Obama is elected. First, the Obama administration, with the complicity of then-Solicitor General Elena Kagan, actively sabotages its purported defense of DOMA. Then, on the flimsiest of pretexts, it completely abandons its duty to defend DOMA and aggressively attacks DOMA. (See Part IV of my House testimony on the “First” proposition and the remainder of it on the latter.) The Supreme Court ends up invalidating DOMA in an opinion by Justice Kennedy that, in the course of breaking new ground, smears supporters of DOMA as mean-spirited bigots. To top off the farce, Kagan provides the decisive fifth vote.

The battle for marriage in California displays a similar pattern. In 2000, California voters adopt Proposition 22 to affirm that marriage in California remains what it has always been—the union of a man and a woman. In May 2008, the state supreme court, in a novel opinion and by a 4-3 vote, strikes down Proposition 22 as supposedly violative of the state constitution. Marriage supporters respond with Prop 8, which the voters of California adopt in November 2008. Intense and vicious bullying of supporters of Prop 8 ensues.

Proponents of same-sex marriage then run to their favorite federal courthouse to challenge Prop 8 on federal constitutional grounds. They draw as the judge in the case Vaughn Walker, who proceeds to engage in what is probably the most egregious course of misconduct ever by a federal district judge (and who discloses only after his retirement from the bench that he is in a long-term same-sex relationship and thus was ruling on his own right to marry his same-sex partner). The Ninth Circuit ruling on appeal, which also holds Prop. 8 to be unconstitutional, is written by notorious liberal activist Stephen Reinhardt. Judge Reinhardt’s wife, Ramona Ripston, directed an ACLU affiliate that filed briefs in support of the Prop. 8 challengers in the same case and publicly rejoiced over Judge Walker’s ruling. Yet Judge Reinhardt somehow refuses to disqualify himself from deciding the appeal.

As reprehensible is the unprecedented refusal of California officials to defend Prop 8—a refusal that ultimately leads five members of the Supreme Court (including Kagan, the decisive vote once again) to rule that the Court has no jurisdiction over the case.

Now I of course understand that those who somehow believe that there is a never-before-recognized constitutional right to same-sex marriage will perceive supporters of marriage to be the unjust aggressors in these episodes. But I would hope that even they would acknowledge that supporters of marriage have pursued their objectives democratically and peacefully and, adhering to established constitutional principles (rather than imagined new ones), have ample cause to feel terribly cheated.

The indefatigable Ed Whelan continues his insightful dissection, below, of what the Supreme Court did to the rule of law yesterday in the same-sex marriage cases (especially Windsor).  Here I will highlight some other reactions our readers might miss outside this page, and then I may be back later with some further thoughts of my own.

First, here at NRO, there’s John Fund’s concern about what the majority in the Hollingsworth case did to the legal integrity of the initiative process in those states, like California, that place legislative (and constitution-amending) power directly in the hands of the people.

National Review’s editors note how five justices (in Windsor) saw fit to take a side in the culture war over marriage, and the wrong side at that.  And a baker’s dozen of experts look ahead, for NRO readers, at what is in store now for the debate over marriage.

Rich Lowry’s column at Politico is must reading, zeroing in on the contempt Justice Kennedy evidently feels for the millions of his fellow citizens who disagree with him about marriage.

Political theorist Micah Watson laments the collapse of our elected officials’ sense of responsibility to the law and to their oaths, when governors and presidents and attorneys general think that winning is everything and the rule of law is nothing.  At SCOTUSBlog, Law professor Helen Alvaré observes how arbitrarily the Court has proceeded to make a ruin of family law, redefining “the meaning of marriage in nearly entirely adult-centric terms.”  Fellow law prof (and Bench Memorandist) Gerry Bradley asks, “is the states’ freedom to choose ‘conjugal’ marriage safe from the reasoning of Windsor?” And William Duncan of the Marriage Law Foundation notes that the Windsor ruling “reads like a result in search of a reason.”

I have my own take on the rulings at the First Things website, noting that “it could have been worse” but we have our work cut out for us.  And my colleagues Sherif Girgis, Ryan T. Anderson, and Robert P. George have more to say on the rulings, and much more on the kind of work we must undertake, in an essay at Public Discourse today.  Ryan in particular was everywhere yesterday, on the air, online, you name it.  He and I were both on the air with Bill Bennett this morning, and if you missed it and are signed up for podcasts, you can still listen in.

Now that I’ve had some time to try to digest yesterday’s atrocious DOMA ruling (which I presented in these Part 1 and Part 2 posts), I’ll offer these brief observations:

1. Justice Kennedy’s gaseous and gauzy rhetoric combine with what Justice Scalia aptly calls his “rootless and shifting … justifications” to yield a ruling that has no coherent discernible principle and that is thus essentially lawless. (That, of course, is often the case with Kennedy opinions. Romer v. Evans, which yesterday’s opinion invokes and resembles, is a prime example.) All we know is that DOMA’s definition of marriage for purposes of federal law earns Kennedy’s disapproval. But as to how the mélange of propositions that Kennedy throws out might apply to a future federal definition of marriage (again, for purposes of federal law only) that excludes polyamorous marriages, or adult incestuous marriages, or child marriages, who can know?

2. As law professor Will Baude, who has written extensively on DOMA and choice-of-law principles, observes, yesterday’s ruling “means that same-sex couples and the federal government now have to confront a series of complicated and difficult choice of law questions.” Avoiding those questions, as Scalia pointed out, was one of the many reasons that ought to have sufficed to justify DOMA.

3. Kennedy complains that DOMA “creat[es] two contradictory regimes within the same State” and thus “forces same-sex couples to live as married for the purpose of state law and unmarried for the purpose of federal law.” But it’s equally clear (as this Washington Post article discusses) that the federal regime that the Obama administration is going to try to impose will create “two contradictory regimes within the same State.” Take, for example, Adam and Steve, who “marry” in New York but reside (or later move to) Virginia. The Obama administration will treat them as married for all or many purposes of federal law, even as Virginia treats them as unmarried.

Of course, Kennedy’s objection isn’t to the existence of “two contradictory regimes” per se, but to the failure of federal law to treat as marriages those relationships that a state “has found it proper to acknowledge and protect” as marriages. In other words, there is a one-way ratchet built into his approach. By striking down DOMA’s section 3, the Court isn’t requiring the federal government to defer to state definitions of marriage generally. It is requiring the federal government to defer only to state definitions that allow same-sex marriage. For those states that don’t allow same-sex marriage, the federal government will be free to create a contradictory federal regime.

4. As Scalia points out, Kennedy confusedly both invokes and disclaims concerns of federalism. As I’ve argued extensively (including in this NR essay), far from violating principles of federalism, DOMA’s section 3 respects and implements federalism by exercising the federal government’s authority over federal law. Among other things:

Far from effecting any departure from past practice, DOMA merely reaffirmed and made crystal clear what Congress had always meant by the term “marriage” in provisions of federal law: a male-female union. DOMA doesn’t intrude at all on a state’s authority to regulate marriage under state law. It doesn’t nullify or prohibit any marriages, or in any other respect preempt the operation of state law. On the contrary, it leaves the states free to define, or redefine, marriage as they please.…

There is no substantively neutral position available to the federal government in defining marriage for purposes of provisions of federal law. If the federal government chooses to incorporate into federal law a state’s revised and expanded definition of marriage, it inevitably is subsidizing, and implicitly validating, that state’s redefinition, and it is forcing the citizens of other states to subsidize that redefinition.

1979—Justice Brennan’s majority opinion in United Steelworkers v. Weber holds that the provisions of Title VII that make it unlawful to “discriminate … because … of race” in hiring do not in fact make it unlawful to discriminate because of race in hiring—not, that is, when the victims are white. Specifically, Brennan, scorning the “literal interpretation” of Title VII, opines that private employers may adopt racial hiring quotas that disfavor whites in order to “eliminate manifest racial imbalances in traditionally segregated job categories.”

2005—By 5-4 votes, the Supreme Court rules that Ten Commandments displays in Kentucky courthouses violate the Establishment Clause (McCreary County v. ACLU) but that a Ten Commandments display on the Texas State Capitol grounds does not (Van Orden v. Perry). In the Kentucky case, Justice Souter’s majority opinion (joined by Stevens, O’Connor, Ginsburg, and Breyer) darkly observes, “We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable.” But it is rulings like Souter’s that are the primary cause of any divisiveness.

Justice Breyer, who provides the decisive fifth vote in each case, explains that for “difficult borderline cases” that are “fact-intensive,” there is “no [Establishment Clause] test-related substitute for the exercise of legal judgment.” That judgment, be assured, “is not a personal judgment” but “must reflect and remain faithful to the underlying purposes” of the Religion Clauses and “must take account of context and consequences.” The particular factor that Breyer finds “determinative” in the Texas case—but don’t jump to the foolish conclusion that anything similar might be determinative in any other case—is that “40 years passed in which the presence of this monument, legally speaking, went unchallenged.” By contrast, the Kentucky displays had a “short (and stormy) history.” And “a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not.” Thus, under Breyer’s view (as well as that of the other members of the Kentucky majority), American citizens today lack the power that their parents and grandparents had to have our governments affirm, acknowledge, and encourage respect for our religious heritage.

For reasons I have amply spelled out before, I regard today’s decision against DOMA as a grave act of judicial lawlessness, yet another usurpation by an imperial, and imperious, Supreme Court majority. As for the Prop 8 ruling against standing: I don’t think that it’s right, but if it is, the people of California have been victimized by an unremediable act of executive-branch lawlessness—the refusal of the governor and the attorney general to defend Prop 8.

In both cases, the proper exercise of sovereign authority has been unjustifiably thwarted—and on a matter of great significance. To restate my position on the broader question of marriage:

The collapse of our marriage culture in recent decades — a collapse that heterosexuals are largely responsible for — has brought with it all the social pathologies associated with divorce, out-of-wedlock births and single-parent families. Over the long term, the American experiment in ordered liberty cannot flourish amidst this collapse. It is time for all Americans to work to restore our marriage culture and to re-establish the inherent link between marriage and responsible procreation and child-rearing, rather than to redefine marriage to deny that vital link.

These decisions, handed down by the Court today, affect to be limited in their reach, but they are even worse than they appear, and they cannot be cabined. They lay down the predicates for litigation that will clearly unfold now, and with short steps sure to come, virtually all of the barriers to same-sex marriage in this country can be swept away. Even constitutional amendments, passed by so many of the states, can be overridden now. The engine put in place to power this drive is supplied by Justice Kennedy’s “hate speech,” offering itself as the opinion of the Court in U.S. v. Windsor. Kennedy wrote for the Court in striking down Section 3 of the Defense of Marriage Act (DOMA), the part of the act that recognized as “marriage,” in federal law, only the union of a man and woman. In Kennedy’s translation, the Defense of Marriage Act showed its animus in its very title: The defense of marriage was simply another way of disparaging and “denigrating” gays and lesbians, and denying dignity to their “relationships.” As Justice Scalia noted so tellingly in his dissent, Kennedy could characterize then as bigots the 85 senators who voted for the Act, along with the president (Clinton) who signed it. Every plausible account of marriage as a relation of a man and woman can then be swept away, as so much cover for malice and blind hatred.

As Scalia suggested, that opinion can now become the predicate for challenges to the laws on marriage in all of the States. A couple of the same sex need merely go into a federal court and invoke Justice Kennedy’s opinion in the DOMA case (U.S. v. Windsor): The Supreme Court has declared now that a law that refuses to recognize same-sex marriage is animated by a passion to demean and denigrate. Any such law cannot find a rational ground of justification. As Kennedy had famously said in Romer v. Evans, those kinds of laws can be explained only in terms of an irrational “animus.”

That may be enough to have the laws and the constitutional provision overruled. But it gets even better if the state has a Democratic governor: For he may declare now that he will not enforce the constitutional amendment, for he thinks it runs counter to the federal Constitution. And by the holding today in the case on Proposition 8 in California (Hollingsworth v. Perry), the backers of the constitutional amendment will have no standing in court to contest the judgment. Constitutional amendments are meant to secure provisions that will not be undone by the shift in season from one election to another. But with the combination of these two cases today, any liberal governor can virtually undo a constitutional amendment on marriage in his state.

Justice Kennedy sought to pretend, and Chief Justice Roberts pretended to believe him, that his judgment applied only to Section 3 of DOMA, in which the Congress declared that, in federal law, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife.” Section 2 of DOMA sought to support the authority of a state to refuse to credit a same-sex marriage brought in from another state. It sought to prevent one state from indirectly nationalizing homosexual marriage, with the aid of the Full Faith and Credit Clause of the Constitution. Justice Kennedy insists that the decision on Section 3 does not touch Section 2: It does not compel any State to recognize same-sex marriage. But as Justice Scalia quipped in dissent, that claim falls into the list of “bald, unreasoned disclaimer[s].” Kennedy’s opinion will be hauled out in the cases to come to argue that the State has no justified ground for refusing to accept same-sex marriage in its own laws, or crediting the same marriages coming in from other states.

In Hollingsworth v. Perry, the Court refused to recognize the standing of the backers of Proposition 8 to defend that constitutional amendment in the courts. Once the governor of the state refused to defend the amendment, the backers of the amendment could claim no personal injury at stake in the litigation. When a federal district court struck down Proposition 8, the backers of the amendment had no standing to take the case into a higher, appellate court, and that court, in any event, turned out simply to confirm the holding of the district court. In denying standing, the Supreme Court now swept away the holding of the appellate court. All that is left is the holding of the District Court, which covers only the litigants in the case. And the holding has no precedential standing in any other court. And so, would the case cover no one but the litigants, and would Proposition 8 still be on the books? But more “bald, unreasoned disclaimer.” The legislature will take Justice Kennedy’s language in the DOMA case to call into question the standing of Proposition 8 as a constitutional amendment in California. And they may proceed then to legislate again to establish and promote same-sex marriage.

Our friends in the National Organization of Marriage could well be put out of business by the work that the Court today has completed. They may have to think anew on a strategic path once considered and long ago discarded: They may have to ponder again the use of Article V of the Constitution to amend the constitution on the appeal of two-thirds of the states.  If we add the number of states that have constitutional amendments now to protect marriage, along with States that have resisted same-sex marriage in their laws, they would be more than enough to call for a constitutional convention to amend the Constitution on this subject.  

Present at the Court today were families of the justices, as the Court reached the end of its work for the term. But as we passed out of the courtroom this morning, all quite amiable and civil, the culture war had taken a decisive, real turn.           

Continuing from my Part 1 post:

3. Let me take a stab at briefly summarizing the 5-4 divide on standing between the Chief Justice’s majority opinion (pp. 10-16) and Justice Kennedy’s dissent. (That divide is roughly captured by the divergent positions taken by Walter Dellinger in his amicus brief, which the Chief Justice cites at least twice, and by my critique of Dellinger’s amicus brief.)

For background, recall that when the Ninth Circuit panel certified to the California supreme court the question of the role of Prop 8 proponents under state law, the unanimous California supreme court explained that “it is essential to the integrity of the initiative process” that “the official proponents of an initiative (in light of their unique relationship to the initiative measure under [California law])” be able to “assert the state’s interest in an initiative’s validity on behalf of the people when the public officials who normally assert that interest decline to do so.” Recall further that in Arizonans for Official English v. Arizona (1997), in expressing in dicta its “grave doubts” about whether the proponents of the initiative in that case had standing, the Court noted that it was “aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” It thus implied that a state law appointing initiative sponsors as agents of the people would suffice to confer standing.

In determining that Prop 8 proponents do not act as “agents of the people of the State,” the Chief Justice relies on technical concepts of agency set forth in the Restatement (Third) of Agency, including the “essential element” of “the principal’s right to control the agent’s action.” He thus finds it meaningful that Prop 8 proponents “answer to no one.”

Justice Kennedy, by contrast, understands (as I do) the term “agents of the people” to be “shorthand for a party whom ‘state law authorizes’ to ‘represent the State’s interests’ in court.” He points out (as I did) that elected officials “are no more subject to ongoing supervision of their principal—i.e., the people of the State—than are initiative proponents.”

4. I acknowledge that the standing issue in the case is a difficult one, and I’m certainly not entirely comfortable being with Kennedy and against the Chief. I will say, as Justice Alito does say in his dissent in the DOMA case, that I find the case for standing in the Prop 8 case much stronger and clearer than the case for standing/jurisdiction in the DOMA case (largely because I don’t see how the federal Constitution limits the ability of a state to designate who has the authority to assert and defend the state’s interest in a law). I gather that Justice Thomas’s vote against standing/jurisdiction in the DOMA case and for standing in the Prop 8 case reflects a similar judgment.

I therefore find it especially puzzling how Justices Ginsburg, Breyer, and Kagan could vote for standing/jurisdiction in the DOMA case and against standing in the Prop 8 case. Too bad that none of them deigns to provide a word of explanation. (Justice Sotomayor, like Alito, would have found standing in both cases.)

Here is the good news out of the Supreme Court today: the justices did not say there is a federal constitutional right, good nationwide, of same-sex couples to be married under the law of their states. Ted Olson and David Boies, representing the plaintiffs seeking to overturn Prop 8, threw that long pass and it was incomplete. Since the majority of the Court in Hollingsworth v. Perry held that the proponents of Prop 8 did not have standing to appeal the district ruling to the Ninth Circuit, that appellate court’s ruling is “vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction” (quoting the conclusion of Chief Justice Roberts’ opinion). But does this mean that the Ninth Circuit can, should, or will vacate the ruling of Judge Walker in the district court, where the trouble began with the state officials declining to defend Prop 8 at trial? This possibility is raised by Ed Whelan (following Vikram Amar) below, who wonders aloud whether there was genuine adverseness at the district court. If not, then a default judgment applying only to the two couples bringing the lawsuit against Prop 8 would be the correct legal outcome.

Even if that is so, obtaining favorable action on such a narrowing effect — out of the Ninth Circuit or state officials — would be a tall order. So here’s the bad news about the Hollingsworth case: it very probably means that same-sex marriage is back in California. That is certainly how Governor Brown and company want to understand it, and they will pull out all the stops to get county clerks to toe the new line.

The good news in the U.S. v. Windsor case is that it seems to honor the authority of states to determine who has the right to marry. Indeed, much of the reasoning of Justice Kennedy’s badly confused majority opinion is based on the proposition that it is states that confer “dignity and status” on couples who marry. And the penultimate sentence of Kennedy’s opinion is this: “This opinion and its holding are confined to those lawful marriages” contracted under states that have already legalized (by hook or by crook) same-sex unions under the name “marriage.” In other words, Section 2 of the Defense of Marriage Act, which protects the right of a state to decline recognition of marital status to same-sex couples married in another jurisdiction, is technically unaffected by today’s decision.

The bad news out of Windsor, though, is very bad indeed. First, as Justice Scalia notes, we have heard this tune whistled before, that a ruling’s obvious implications are not to be inferred. We heard it in 2003’s Lawrence v. Texas ruling on same-sex sodomy, which wasn’t supposed to implicate marriage rights–and was promptly relied on by the Massachusetts high court months later, and is relied on today in Windsor itself to some extent.

Second, the ground on which Windsor is decided — a patented Kennedy muddle of unstated constitutional premises combined with arrogant, demeaning moralizing — is further ammunition for the advocates of same-sex marriage to attack both Section 2 of DOMA, when couples move from state to state, and state laws and constitutions restricting locally celebrated marriages to those between a man and a woman. For if the real impact of Windsor is in its rhetoric — all will o’ the wisp “injury and indignity” and “stigma” as the effect suffered on one side, with “animus” as the cause on the other–then we can expect a future court, reaching the merits of challenges to state marriage laws, to respond favorably to litigants who pick up these newly forged legal tools and use them to further effect.

For today, the marriage laws of all fifty states remain in the power of the people of those states to preserve or restore. Yes, even in those states that have taken the wrong turn down the path of redefining marriage, this is true. And that is the best news one can glean from today’s cases. But how much longer this will be true, one cannot say. The tyrannical impulses of the Supreme Court ran very strong today in the Windsor case. Either they will be checked, or we will see even worse things in the days to come.

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.”

Because there are so much bigger fish to fry today, I shall simply invite readers to savor at their leisure footnote 7 of Justice Alitos’ dissenting opinion.  There he delivers a much-deserved rebuke to the man who reigned over the Prop 8 trial, since-retired District Judge Vaughn Walker. 

Here is a foretaste of what lies in store (all from that long, delicious footnote):

At times, the trial reached the heights of parody, as when the trial judge questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify in person in his courtroom.

And, if this spectacle were not enough, some professors of constitutional law argued that we [Justices of the Supreme Court] are bound to accept the trial judge’s findings  – including those on major philosophical questions and predictions about the future – unless they are ‘clearly erroneous’….Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously. 

Continuing my autopsy on the corpse of the American body politic, I turn to the Court’s 5-4 ruling in U.S. v. Windsor striking down the federal Defense of Marriage Act’s definition of marriage for purposes of federal law.

1. Justice Kennedy wrote the majority opinion and was joined by the four liberals. Kennedy concludes that (a) the Obama administration’s refusal to defend DOMA (and to contest the Second Circuit’s ruling adverse to DOMA) does not deprive the Court of jurisdiction, and (b) DOMA is unconstitutional.

In the lead dissent, Justice Scalia opines (a) that the Court lacks jurisdiction over the appeal, and (b) that DOMA is constitutional. Justice Thomas joins Scalia’s dissent in full. The Chief Justice joins the first part and, in a separate brief dissent, makes clear that he agrees with Scalia that DOMA is constitutional. He writes separately to emphasize his view that the majority’s holding and reasoning don’t dictate the conclusion that traditional marriage laws in the states are unconstitutional. In a separate dissent, Justice Alito agrees with the majority that the Court has jurisdiction but concludes (joined in this part by Thomas) that DOMA is constitutional.

2. Here is the essence of Kennedy’s reasoning in support of his conclusion that DOMA is unconstitutional:

a. Although Congress clearly has the authority to enact “limited” federal laws that regulate the meaning of marriage in order to further federal policy, DOMA “enacts a directive applicable to over 1,000 federal statutes and the whole realm of federal regulations.” Further, “its operation is directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect.” (15-16.)

b. “The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens.” “Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.” “Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next.” (17-18.)

c. “The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. [D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.” Citing Kennedy’s own (incomprehensible) opinion in Romer v. Evans (internal quotation marks removed). (18-19.)

d. “DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group. In determining whether a law is motived [sic] by an improper animus or purpose, [d]iscriminations of an unusual character especially require careful consideration. DOMA cannot survive under these principles. The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” (20-21 (citations and internal quotations omitted).)

e. “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA 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. By this dynamic DOMA undermines both the public and private significance of statesanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.” (22-23; see also 23-24 (harms from DOMA).)

3. From Scalia’s dissent on the merits question (15-26) (case citations omitted):

a. The majority’s reliance on federalism is rootless and shifting. “The opinion starts with seven full pages about the traditional power of States to define domestic relations—initially fooling many readers, I am sure, into thinking that this is a federalism opinion. But we are eventually told … that ‘[t]he State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism’ because ‘the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.’ … Even after the opinion has formally disclaimed reliance upon principles of federalism, mentions of ‘the usual tradition of recognizing and accepting state definitions of marriage’ continue.”

b. “The [majority] opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality.… In accord with my previously expressed skepticism about the Court’s “tiers of scrutiny” approach, I would review this classification only for its rationality. As nearly as I can tell, the Court agrees with that; its opinion does not apply strict scrutiny, and its central propositions are taken from rational-basis cases like Moreno. But the Court certainly does not apply anything that resembles that deferential framework.”  

c. “The majority concludes that the only motive for this Act was the ‘bare . . . desire to harm a politically unpopular group.’ Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state (familiar objects of the Court’s scorn), but our respected coordinate branches, the Congress and Presidency of the United States. Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute. The majority does the opposite—affirmatively concealing from the reader the arguments that exist in justification. It makes only a passing mention of the ‘arguments put forward’ by the Act’s defenders, and does not even trouble to paraphrase or describe them.”

d. “[E]ven setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation.” For example, DOMA “avoids difficult choice-of-law issues that will now arise.” It “preserves the intended effects of prior legislation against then-unforeseen changes in circumstances.” “That is not animus—just stabilizing prudence.”

e. “It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement [for the states] to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it.” “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”

I feel a bit like a coroner examining the corpse of the American body politic. That said, here is my overview, with some commentary, on today’s Prop 8 ruling (in Hollingsworth v. Perry).

1. By a vote of 5 to 4, the Court ruled that Prop 8 proponents did not have standing to appeal the district court’s decision adverse to Prop 8. The Chief Justice wrote the majority opinion, joined by Scalia, Ginsburg, Breyer, and Kagan. Justice Kennedy wrote the dissent, joined by Thomas, Alito, and Sotomayor. The opinions are devoted entirely to the standing issue and do not touch on the constitutional claims asserted against Prop 8.

2. The Court vacates the Ninth Circuit’s ruling (which, like the district court’s, invalidated Prop 8) and remands “with instructions to dismiss the appeal for lack of jurisdiction.” The Court doesn’t specifically address what ought to happen then to the district court’s judgment.

From my first read, I don’t think that the Court speaks to the question whether there was genuine adverseness at the district-court level. It does say that plaintiffs “had Article III standing” to challenge Prop 8, but that question is distinct from the question whether the refusal of state officials to defend Prop 8 deprived the district court of the adverseness necessary to have a justiciable case or controversy.

For now, I’ll refer readers once again to law professor Vik Amar’s analysis (emphasis added):

My own view is that if the Court finds that the sponsors lack standing to defend Proposition 8, then after the Ninth Circuit ruling is vacated, the case should be sent back (in legal parlance, remanded) to the district court and at that point, the district court order—invalidating Proposition 8 and imposing an injunction against the named defendants—that was issued after Judge Vaughn Walker’s famous trial should also be vacated.  The named plaintiffs would then seek and obtain a victory through a device known as a “default judgment.”  A default judgment is what plaintiffs who have a right to sue (and the plaintiff same-sex couples here clearly did have such a right) get when the only valid defendants—by hypothesis here, the Attorney General and the Governor—“fail to defend.” To those who think Judge Walker’s order and injunction that he already issued on the basis of the trial he conducted should remain intact, I ask:  If Article III standing means anything, how can a trial in which there were valid Article III parties (that is, parties with standing) on only one side of the “v.” resolve the merits of a case?

The default judgment would provide a victory only to the particular plaintiffs.

[9:10 a.m.: The Supreme Court will be announcing its rulings in the two marriage cases -- Prop 8 and DOMA -- today (as well as a ruling in a Hobbs Act case (Sekhar)). Beginning at 10 a.m., and relying on SCOTUSblog and How Appealing, I’ll post here the early word on today’s marriage decisions and links to the opinions, and I’ll update this post until both decisions have been announced. (I’m going to ignore the Hobbs Act case.) I’ll then read through the opinions and provide more extensive review and commentary in separate posts.]

[The marriage cases are the only cases remaining from the March argument calendar, and the Chief Justice and Justice Kennedy are the only justices who haven’t authored lead opinions from that calendar. So if all goes according to form -- and it might not -- the Chief will author the lead opinion in one of the marriage cases and Kennedy in the other. Scalia is expected to be the author of the Sekhar opinion. So if all goes according to form, the order of announcement of opinions would be Kennedy first in one of the marriage cases, then Scalia in Sekhar, then the Chief in the other marriage case.]

[For some background on the two marriage cases, see a short selection of my previous writings here.]

U.S. v. Windsor (Defense of Marriage Act): Kennedy opinion, 5-4. Strikes down DOMA on Equal Protection grounds (mingled with federalism). Dissents by Chief, Scalia.

Based on quick skim of syllabus, Kennedy opinion seems to combine confusion about federalism with Romer v. Evans-type discernment of animus.

Scalia, Chief, and Thomas would find no jurisdiction. All four dissenters would disagree with majority on merits.

Chief says federalism basis of ruling means that ruling has no clear implications for traditional marriage laws in the states. Scalia is more skeptical.

Hollingsworth v. Perry (California’s Prop 8): Opinion by Chief: Prop 8 proponents don’t have standing. 5-4. Dissent (on standing point only evidently) by Kennedy, joined by Thomas, Alito, and Sotomayor. That means that Ginsburg, Breyer, and Kagan found jurisdiction/standing in DOMA case but not in Prop 8 case. Hmmm.

We’ll see if there are some county clerks who will now be able to defend Prop 8. Look for California governor Jerry Brown to do all that he can to prevent any enforcement of Prop 8.

Consequences of no standing for district-court opinion below are disputed. See law professor Vik Amar’s analysis.

Overall: The DOMA case is a big victory for judicial lawlessness, and the Prop 8 case is a big victory for executive lawlessness (at the state level).

1996—By a vote of 7 to 1 (with Justice Thomas recused), the Supreme Court rules that Virginia’s maintenance of the Virginia Military Institute as an all-male institution violates the Equal Protection Clause. Justice Ginsburg’s majority opinion (for six justices) invents a new standard for assessing the constitutionality of sex-based classifications: Only classifications that have an “exceedingly persuasive justification”—whatever that might mean—will survive. But not even Ginsburg, the supposed champion of gender equality, can remain entirely faithful to her feminist ideology. Although she rejects VMI’s position that its “adversative” training is “inherently unsuitable” to women, she concedes in a footnote that admitting women to VMI will “undoubtedly” require that VMI “adjust aspects of the physical training programs.”

2002—A Ninth Circuit panel (in Newdow v. US Congress) rules that the recitation in public schools of the words “under God” in the Pledge of Allegiance violates the Establishment Clause.

2003—“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific”—and spelled out a constitutional right to homosexual sodomy. Such is the quality of insight and analysis offered by Justice Kennedy’s majority opinion in Lawrence v. Texas. Further, in overturning the Court’s 17-year-old precedent in Bowers v. Hardwick, Justice Kennedy blithely abandons the stare decisis principles that he helped cook up in Planned Parenthood v. Casey as a pretense for not overturning the then 19-year-old precedent of Roe v. Wade.

[9:45 a.m.: The Supreme Court has another announcement session today, beginning at 10:00. Six cases remain to be decided, including the two marriage cases and the Voting Rights Act section 5 case. My guess is that the Court will issue rulings in two or three cases today, that the marriage cases won’t be announced until the last day of the session, and that the last day will be Thursday. Relying on SCOTUSblog and How Appealing, I’ll post here the early word on today’s decisions. I’ll update this post until all the decisions have been announced.]

A total of three rulings:

Shelby County v. Holder (is preclearance requirement under section 5 of the Voting Rights Act constitutional?): Opinion by Chief. Section 4 formula defining covered jurisdictions for section 5 preclearance is unconstitutional. 5-4 ideological divide. Ginsburg dissent.

Koontz v. St. Johns River Water Management District (land-use permits and takings): Alito opinion in favor of applicant for land-use permit. 5-4 ideological divide. Kagan authors dissent. (Interesting how the Chief has assigned Alito a number of the most sharply divided cases.) Careful study may be needed to see how significant this one is.

Adoptive Couple v. Baby Girl (Indian Child Welfare Act): Alito opinion. 5-4 (but not the usual ideological divide). Parental rights of biological father may be terminated. Concurring opinions by Thomas and Breyer. Scalia in dissent, along with Sotomayor, Ginsburg, and Kagan.

All remaining opinions will be issued tomorrow (Wednesday).

1990—In Hodgson v. Minnesota, the Court addresses the constitutionality of a Minnesota statute governing notice to parents when their daughters seek to undergo abortion, and the resulting mess yields this summary by the Court of the justices’ votes:

STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, IV, and VII, in which BRENNAN, MARSHALL, BLACKMUN, and O’CONNOR, JJ., joined, an opinion with respect to Part III, in which BRENNAN, J., joined, an opinion with respect to Parts V and VI, in which O’CONNOR, J., joined, and a dissenting opinion with respect to Part VIII. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 458. MARSHALL, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 461. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 479. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined, post, p. 480.

Justice Scalia’s one-paragraph opinion (citations omitted) succinctly captures the situation:

“As I understand the various opinions today: One Justice holds that two-parent notification is unconstitutional (at least in the present circumstances) without judicial bypass, but constitutional with bypass; four Justices would hold that two-parent notification is constitutional with or without bypass; four Justices would hold that two-parent notification is unconstitutional with or without bypass, though the four apply two different standards; six Justices hold that one-parent notification with bypass is constitutional, though for two different sets of reasons; and three Justices would hold that one-parent notification with bypass is unconstitutional. One will search in vain the document we are supposed to be construing for text that provides the basis for the argument over these distinctions, and will find in our society’s tradition regarding abortion no hint that the distinctions are constitutionally relevant, much less any indication how a constitutional argument about them ought to be resolved. The random and unpredictable results of our consequently unchanneled individual views make it increasingly evident, Term after Term, that the tools for this job are not to be found in the lawyer’s—and hence not in the judge’s—workbox. I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.”

2008— By a vote of 5 to 4, the Supreme Court in Kennedy v. Louisiana invents a rule that the Eighth Amendment prohibits the death penalty for the crime of raping a child if the rape does not cause the child’s death. Justices Stevens, Souter, Ginsburg, and Breyer join Justice Kennedy’s majority opinion. The majority’s rule applies “no matter,” as Justice Alito puts it in his dissent, “how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.” (The particular case before the Court involved an eight-year-old victim who suffered a gruesome internal laceration.)

While running for president, Barack Obama purports to oppose the ruling even as he commits to appoint the sort of justices who will disguise their own left-wing policy preferences as constitutional law.