Bench Memos

The DOMA Case — Part 1

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.”



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