DOMA and Prop 8: The Supreme Court's radical conservatism

The Supreme Court's ruling on DOMA was narrow and conservative, but it was remarkably activist as well. Photo: AP

WASHINGTON, June 27, 2013 — The Supreme Court released high-profile opinions on same-sex marriage, the Voting Rights Act, and the right against self-incrimination in the last two weeks. These opinions reveal a court that doesn’t fit easily into the categories of “conservative” and “liberal,” a court that is both cautious and activist.


SEE RELATED: Supreme Court strikes DOMA, Prop 8: marriage equality not reality yet


The majority opinion on DOMA (United States v. Windsor), crafted by Justice Kennedy, is a case in point.

The opinion does not, as the celebrations and mourning suggest, legalize same-sex marriage. The question facing the court was narrow: Can the federal government recognize some marriages that are recognized by the states, and not recognize others? The answer was “no.”

Under DOMA, Massachusetts could permit same-sex marriages, and those marriages were legal. The federal government did not recognize them when granting spousal rights in federal programs and for tax purposes, but the marriages were entirely legal. Striking down DOMA (specifically, Section 3) did not create a right of same-sex marriage, nor did it require any state to recognize same-sex marriages performed in other states.

Subject to guarantees (e.g., Loving v. Virginia, which struck down laws against interracial marriage), marriage has been treated as an exclusive province of the states. The individual states impose their own requirements for marriage, setting residence requirements, minimum age requirements, and other rules for obtaining a marriage license. This remains the case, a fact specifically noted in Kennedy’s opinion.


SEE RELATED: SIEGEL: DOMA and Prop 8: Are the courts replacing democracy?


The essentially conservative approach taken by Kennedy is illustrated here: “Marriage laws may vary from State to State, but they are consistent within each State. DOMA rejects this long-established precept. … New York’s actions were a proper exercise of its sovereign authority.” DOMA was a negation of the state’s authority to define marriage. The primary argument used to overturn Section 3 was the Fifth Amendment, but the court’s opinion leaves the responsibility for deciding what a marriage is squarely in the hands of the states.

A gay couple can marry in California. The state of California and the federal government will recognize them as married and provide them with all the benefits a married couple is legally entitled to. If they move to Louisiana, that state will not recognize their marriage or provide any state benefits that are provided to married couples in Louisiana. A gay couple in Louisiana will not be able to marry there, and they will be ineligible for federal benefits to married couples unless they move to a state that recognizes same-sex marriage and get married there.

If marriage activists in Louisiana want to change that, they’ll have to work at the level of state law. The Supreme Court gave same-sex couples in Louisiana nothing.

This isn’t to minimize the impact of the court’s decision. It’s a strong boost to proponents of same-sex marriage legalization. It increases the likelihood that measures to legalize same sex marriage in states that don’t recognize them will be successful. It formalizes at the federal level a change in the way Americans are thinking about marriage. It is good news for people who favor same-sex marriage across the country, bad news for those who oppose it.


SEE RELATED: Voting Rights basically killed by Supreme Court: Now what?


If Kennedy’s opinion was narrow and conservative in some ways, it was radical in another. The minority opinions in Supreme Court cases are often more interesting than majority opinions, and they are often much more direct. Justices Scalia and Alito, and Chief Justice Roberts all wrote dissenting opinions, and the three agree on one thing: It was remarkable that the court heard this case at all.

A lower court had already ruled in favor of Windsor, the executor of Thea Spyer’s estate. The IRS had been ordered to refund the taxes paid on the estate to her partner, and the Obama Administration had no interest in appealing. The court stepped in to decide what the law was in a case that was not under dispute.

Article III of the Constitution grants the court the power to settle disputes, and in the process it is able to rule on the constitutionality of the law. This case was remarkable because it asserted for the court the primary role in determining the constitutionality of a law. As Scalia writes, “That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role.”

To be clear, the court did not step into a case that was being appealed because the two sides could not agree on a lower court’s decision. The District Court had decided to the satisfaction of both sides, ordering a refund. There were no harms to be resolved, hence there was no case. Justice Kennedy’s argument that refunding taxes to the plaintiff involved a harm to the people of the United States that justified the court’s intervention is a stretch. The Supreme Court stepped in to decide on the constitutionality of a law where there was no dispute. As Scalia put it, “The Court is eager — hungry — to tell everyone its view of the legal question at the heart of this case.” It wasn’t going to let the fact that there was no concrete dispute serve as an obstacle.

The court’s decision on California’s Proposition 8 was based on a dry legal issue; the party that appealed the lower court decision had no standing. It wasn’t a party to the case and couldn’t appeal it. The lower court’s decision to strike down Proposition 8 was left standing. But in the DOMA case the court was undeterred by that type of argument. It wanted to rule on the constitutionality of a law, and so it did.

It is often the case that how the court gets to a decision is even more important than the decision itself. The DOMA decision changed nothing substantive at the level of the states, and the scope of the majority opinion was narrow. But how it got there sets a dangerous precedent. The court was not envisioned as sitting above the other branches of government, ruling on the constitutionality of their actions without a concrete case involving concrete harms, but instead on the basis of ideals and abstractions. That, however, is where this case takes us, and that is far more significant than federal recognition of same-sex marriage, if much less interesting.

 

James Picht is the Senior Editor for Communities Politics and teaches economics and Russian at the Louisiana Scholars’ College in Natchitoches, La. After earning his doctorate in economics, he spent several years working in Moscow and the new independent states of the former Soviet Union for the U.S. government, the Asian Development Bank, and as a private contractor. He returned to Ukraine recently to teach principles of constitutional law and criminal procedure at several Ukrainian law schools for a USAID legal development project. He has been writing at the Communities since 2009.


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Jim Picht

James Picht is the Senior Editor for Communities Politics and teaches economics and Russian at the Louisiana Scholars' College in Natchitoches, La. After earning his doctorate in economics, he spent several years working in Moscow and the new independent states of the former Soviet Union for the U.S. government, the Asian Development Bank, and as a private contractor. He returned to Ukraine recently to teach principles of constitutional law and criminal procedure at several Ukrainian law schools for a USAID legal development project. He has been writing at the Communities since 2009.

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