The decision in the DOMA case doesn’t require states to recognize same sex marriage, nor does it nationalize same sex marriage...explicitly. What it says is that DOMA—the federal law that defines the word “marriage” for purposes of federal law—is unconstitutional insofar because it differentiates between some legal, state-recognized marriages and others, for no good reason.
Since in some states, same-sex marriage is legal, but federal law bars recognition of those marriages for federal purposes, the result is that an opposite-sex couple qualifies for certain benefits which an otherwise identical, but same-sex couple, would not. One example Kennedy gives is a federal law that makes it a crime to hurt the spouse of a federal official in an effort to intimidate or retaliate against that official. Because of DOMA, a federal officer who’s in a same-sex marriage would not fall under the protection of this statute, while an opposite-sex couple would.
That much is obvious. The next step is, this distinction violates the Fifth Amendment’s Due Process Clause (which includes an equal protection requirement). That’s because the distinction is based on animus and a bare desire to harm gays, and not on a “legitimate purpose.” The Court goes through the history of DOMA and shows—pretty convincingly, I think—that there’s really nothing behind DOMA except to single out gays and impose a burden on them. That’s not a good enough reason to differentiate between same-sex and opposite-sex couples in this way. This conclusion follows pretty clearly from the Court’s decisions in cases like Romer and Cleburne and Lawrence and so forth that say that the rational basis standard (which is the lowest hurdle that a law must pass in order to be constitutional) prohibits the government from simply taking away people’s freedom or treating them differently as a mere exercise of will. Instead, there must be some connection between what the law’s doing and some broader principle of the public good. No such connection exists here—this law was just passed in order to burden people that the majority doesn’t like—therefore DOMA is unconstitutional.
This also means, of course, that state bans on gay marriage are unconstitutional under the Fourteenth Amendment. The Court obviously doesn’t say so here, because it’s talking about a federal law, so it’s talking about the Fifth Amendment’s Due Process Clause—and it doesn’t say so in the Prop. 8 case, because it dismissed that case for procedural reasons. But if, as the Court holds, treating same-sex marriages and opposite-sex marriages differently for no good reason violates the Due Process Clause of the Fifth Amendment, then it necessarily also violates the same clause in the Fourteenth Amendment. The only exception would be if opponents of same-sex marriage came forward with a solid reason to make that distinction. And so far, the courts have pretty uniformly found that they haven’t done so. For example, in the Goodridge case from Massachusetts which started this whole debate, the court said that the state’s arguments for banning same-sex marriage held no water: it wasn’t about encouraging procreation, because the state allowed infertile couples to marry; it wasn’t about child-rearing, because the state allowed gay couples to adopt…and so forth. Thus the only reason for the discrimination was ‘cause the majority doesn’t like gays, and that’s not good enough. That same point has been made repeatedly throughout this whole debate: banning same-sex marriage simply because you think it’s wrong or unnatural or bad isn’t good enough. There has to be some public interest—it has to be about protecting people’s rights, or preserving public resources or something like that—and that isn’t the case with bans on same-sex marriage.
Thus while I agree with this part of the decision, I think Justice Scalia is right to say in his dissent that this is not really the federalism decision it pretends to be. The holding is that differentiating between kinds of marriages on this basis violates Due Process—and that is clearly not connected to the federal-state relationship. What Scalia’s wrong about is saying that “the Constitution does not forbid the government to enforce [sic] traditional moral and sexual norms.” On the contrary, the Due Process Clause does precisely that: government may forbid crimes, not (alleged) sins.
Where the Court goes wrong in my opinion is on standing. I think the Court is pretty clearly playing fast and loose with the standing rules. There is no “adversity” here—in other words, the plaintiffs and the defendants agree with each other. The Obama Administration doesn’t back DOMA, and in its appeals, has asked the courts to affirm the decisions in which it lost. That’s a constitutional problem, because (in theory) federal courts have limited authority to hear cases. They can only review “cases and controversies,” and—as Justice Scalia observes—you can’t have a “controversy” when both sides agree. Federal jurisdiction therefore requires “adversity,” yet there’s no adversity in this case.
The Court gets around that by saying that the adversity requireemnt is only a “prudential” aspect of the broader standing requirements—meaning that the courts can ignore it when they think it proper to do so. But that’s just an invitation to abuse, and courts haven’t treated this as merely “prudential” matter before. On the contrary, as Justice Scalia points out in his dissent, there are other precedents that say the other parts of these jurisdictional requirements are just “prudential” aspects of the adversity requirement! That makes the whole thing so flexible that the courts can hear cases that don’t have the other requirements so long as there’s “adversity”—and can hear cases where there’s no adversity so long as there’s the other requirements. And that flexibility risks expanding the Court’s power beyond the constitutional limits, so that they can decide issues where there’s no “case or controversy.”
That concern is heightened by the Court’s reference to the “unusual and urgent circumstances” of this case. Obviously we might agree with that, but in the past, the courts haven’t allowed amorphous considerations like “urgency” to trump the constitutional standing requirements.
Yet the justices nevertheless find that there’s standing because if the feds lose the case, they’ll have to pay money to the plaintiff. But that was already decided by the trial court, and on appeal, the feds say they are fine with that. So where’s the controversy for the appeal? There’s already legal authority to require the feds to make the payment (i.e., the trial court) and they’re happy to do so, so there’s no controversy on the appeal. As Scalia says, “Since both parties agreed with the judgment of the District Court for the Southern District of New York, the suit should have ended there.” The majority doesn’t answer this. Its discussion of standing only establishes that there was (a) standing in the trial court and (b) that the Feds have an interest in a possible appellate precedent—which is irrelevant. That’s never been enough to allow you to appeal.
I support same-sex marriage, and I agree that legal prohibitions and discriminations against it violate the Due Process Clause. But I have to agree that the Court went out of its way to escape the long-standing limits on its jurisdiction in order to issue this precedent.
I'll be joining Armstrong & Getty again this morning in the 8 o'clock hour to talk about the Supreme Court decisions. You can listen online here.
Update:Here's the podcast. My part starts at about the 10:30 mark. At the beginning, I mentioned the scandalous history of the case Ex Parte Quirin. Jonathan Turley's article about that case lays out the nasty details, and you can read that here. Jack mentioned the great book Arguing About Slavery, which I strongly recommend, and you can get that here.
I'll be joining Armstrong & Getty at about 7:45 to talk about today's Supreme Court decisions.
Update: Um...just to clarify.... I meant that the Supreme Court has allowed Congress to create a central bank to control the money supply. I did not mean that I endorse such a reading of the Necessary and Proper Clause.... It appears I'll be sleeping on the couch for the next year or so....