Windsor Is A Pretty Good Opinion

Have seen some references to the case (e.g., Volokh Conspiracy has an ongoing series about various moves by the feds to set policy*), and as is the case for Roe et. al., there are the usual potshots at how flimsy it is. I retain, yes seriously, my belief that it was a pretty good ruling.  As usual, this is partially a matter of the likelihood of imperfection when dealing with group efforts and justices who are not [fill-in blank] level wordsmiths or have the legal chops of [fill-in blank] and realistic compromises. Still.

The opinion begins with the facts and a reasonable discussion on why it is appropriate for the Court to rule on the case, even though the President supported Windsor on the law. For instance, they still were not paying the money, while she wanted it. The opinion also explains past practice where amici were accepted to argue one side, as one case cited noted largely "[b]ecause of the importance of the questions raised by the Court of Appeals’ decision." The Chadha ruling also is a good case here, in fact, Judge Kennedy wrote on the use of legislative amici there below. So, it is also sound not to decide if BLAG standing was necessary -- there was adversity between Windsor and the U.S. and BLAG provided amici value to forcibly make the opposite argument, providing adversity there.

Six judges in fact accepted the Court was right to take the case, with Alito joining that, though going further, and firmly giving BLAG (one House of Congress, mind you) the right to defend a law that isn't being defended (it was after all being enforced). Alito argued that the U.S. was not the right party, since they in effect wanted Windsor to win. But, be that as it may, they were still enforcing the law. He makes a decent argument, which only goes so far. OTOH, we have the idea of one branch of Congress stepping in to protect Congress' handiwork.  That seems off to me.

The majority then talks about the general practice of the states having power over domestic relations, including marriage, though noting the feds still have power over such things in various ways. The opinion notes:

In order to assess the validity of that intervention it is necessary to discuss the extent of the state power and authority over marriage as a matter of history and tradition.

The opinion suggests there is a federalism angle here, but does not decide the case on that ground. It explicitly says this. It isn't hard. The case rests on the equal protection component of the Due Process Clause of the Fifth Amendment.  Since classification is made here, it is appropriate to look at the nature of the use of federal power here, particularly its novelty:

The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and dis- abilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.

The opinion then discusses why this is a violation of equal protection, leading with the red flag that the "unusual deviation from the usual tradition of recognizing and accepting state definitions" is "strong evidence of a law having the purpose and effect of disapproval of that class." This, to be blunt, is f-ing obvious. It is tiresome really to have people deny it.  Section 2 of DOMA, redundant it might be, deals with state recognition. Section 3 singles out one type of marriage from which to deprive both benefits and obligations, among all other new developments (the opinion does a good job here of noting how marriage develops via the people of each state's changing recognition of its nature**).  As the opinion notes, the text and history of the law makes this even more clear.  As does the House Report.

The result, again as the opinion notes, harms the couples in question. Justice Alito faces the merits and notes the feds can decide to favor one type of marriage over another.  Why?  As to same-sex marriage not being "deeply rooted," nor are other types of marriages. I have seen this selective vision, including from law professors, but then illicit discrimination often is a matter of "habit rather than analysis" of wrongful practice. This is a major route to "stereotyped reaction." It is not "deeply rooted" to have each different sex partner to be an equal partner.  This is "beyond dispute," to quote Alito, given coverture rules, etc. The selective application of DOMA on same-sex couples shows an animus.  The reference got some complaints, especially if it is taken out of context without looking at the opinion as a whole, but this is right:

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. Department of Agriculture v. Moreno, 413 U. S. 528–535 (1973).

The idea for some here is that the Court is saying that the Congress and the President who signed DOMA were just a bunch of bigots. Not really. The case cited involved a law targeting hippies. It was deemed unconstitutional, an illicit targeting of the group in question. They were not supposed to just be a bunch of bigots.  A "bigot" is a particularly offensive animal. An illicit law can be a product of various things, harm at times justified by the parties on various grounds.  It is simplistic to not understand the full context of the reference, though yeah, DOMA was pretty bigoted. Sorry.  As the opinion notes in its conclusion, DOMA:

is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.

The reference to "dignity" and other such empathic sounding language annoys some too. But, it is appropriate to talk about how laws that harm should be found illegitimate.  "Dignity" is a common term used by various justices in various ways. It is not novel to this case and I have my doubts that some totally bland opinion would satisfy the critics. Yes, Kennedy has a certain style, like each justice does, but it is evenhanded; the same sort of thing might pop up when he writes about an affirmative action law being illegitimate or why ACA is unconstitutional, to the degree he had some part in the writing of the joint dissent.

I have no desire to claim the opinion was perfect, but as a whole, it is a pretty good opinion. One final complaint is that the opinion did not do enough to answer the supporters of DOMA, particularly the reasoning put out there in its defense. Section Three of DOMA was clearly put in place because same-sex couples in particular were deemed unworthy of federal marriage benefits.

An argument is put out that it deals with the novel issues of a new type of marriage, including the questions now being dealt with by the Obama Administration. But, why is this particular form of marriage supposedly in need of such a fix?  Why is this particular form of "new marriage" warranting special treatment?  It's true the majority could have addressed this issue (Kennedy has a bad habit of not addressing dissent arguments directly), if only because the answer is so clear.

The final concern I'll address is the question of scrutiny. The 2CA and the Obama Administration supported heightened scrutiny here, at least intermediate review, which is the standard for gender. The Court did not decide that sexual orientation warranted a special level of scrutiny, following the more opaque approach of Lawrence (and in a different respect, Heller, which also didn't decide the question, though it made clear rational basis wasn't enough).  I respect the lower level of activism here as well. The opinion did not require a firm answer to the question, since the specific law was blatantly unconstitutional. 

The Court did have something to say and it somewhat favored the 1CA opinion (which also covered federalism) on the question. The opinion speaks of "careful consideration" when discrimination of an "unusual character" was involved.  It quotes Romer here, and at least when a "politically unpopular group" is involved, such policies would warrant what some call rational basis plus (however it is phrased, this was also suggested by more than one justice during orals). In effect, Justice O'Connor's Lawrence concurrence (based on equal protection and cited by the Court in CLS v. Martinez)  is starting to become clear law.

The Solicitor General was on C-SPAN yesterday as part of a panel talking about last term and the upcoming USSC term and noted how the Administration pushed for a level of scrutiny stronger than applied to types of eyeglass distributors, focusing classifications by personal characteristics (a step beyond immutable characteristics), lack of political power and so on.  He didn't get all that he wanted on that front but didn't do all that bad. The test seems to me to put state DOMAs at risk, they too novel latter day blunderbusses against unpopular groups.

Traditional bans on same-sex marriage are not as unusual and that is one reason why Windsor all by its lonesome doesn't get you there quite yet.  It helps, surely, including concern for "purpose and effect," which is one more nice thing -- sometimes a high level of intent has to be shown, even when a policy deprives someone of liberty or equal protection.  The intent very well might even be there, such as driving while black, but phony "innocent" grounds can be found to paper over the effects.

All in all, I liked the ruling, its flaws on balance are quite forgivable. 

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* The choices seem reasonable, but it really seems -- not that the split Congress is likely to handle it soon -- like something that warrants a legislative clarification. The issue is complicated, some matters are based on domicile, and some on places of celebration.

With the two so significant as compared to most marriages, this is likely to advance full equality, including by litigation.  The decision for the feds rests on current law and practice, but there surely is wiggle room.  I do wish more discussions remind people that back in the day interracial marriages raised similar difficulties.

** Letting this development continue without having the feds single out one type of marriage is a reason why the opinion is different from setting in stone SSM for each state. Such development is how our common law Constitution works, particularly when deciding larger questions is not necessary to settle specific "cases" and "controversies," which are for a reason taken one by one.  Judicial restraint here is not worthy of scorn.

Also, once the states in question recognize the marriages, federal non-recognition is particularly dubious. For instance, as cited, federal ethics rules don't apply even to state-married couples.  The underlines the Romer-like overbreadth, even if we pretend that neutral reasons justify the statute. Note the rational basis with teeth scrutiny provides less looking the other way, so "pretending" is less appropriate here.