Same Sex Marriage Rulings (and Extortion)

Two women then resident in New York were married in a lawful ceremony in Ontario, Canada, in 2007. Edith Windsor and Thea Spyer returned to their home in New York City. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the estate tax exemption for surviving spouses. She was barred from doing so, however, by a federal law, the Defense of Marriage Act, which excludes a same-sex partner from the definition of “spouse” as that term is used in federal statutes.

The USSC term is not quite over -- there remains some orders. Today had three opinions. The penultimate one was a unanimous ruling (6-3 on reasoning; Scalia for majority, Alito with Kennedy and Sotomayor concurring) rejecting an application of a federal extortion statute. Very exciting to about three people.

First came DOMA -- 5-4 on equal protection grounds with a dash of federalism by Kennedy ("the gay justice") with three dissents that both rejected jurisdiction and supported the law on its merits. Last came Prop 8, struck down on lack of standing with the interesting (if explainable*) dissent allotment of Kennedy (author), Thomas, Alito and Sotomayor. The result if not the vote count was hinted by CJ Roberts' dissent that suggested they disposed of Prop 8. The dissent being upset the majority even ruled upon DOMA is a bit surprising and a tad hypocritical, especially the day after Shelby. 

Scalia being upset at such an "assertion of judicial supremacy" is almost comical.  Alito has a more limited take on that subject, but dissents alone there; Thomas joined Alito's merits discussion, though my reference below as to him stands. Alito notably (alone among the dissenters) would have granted standing, though had a more limited view of things. When the President refuses to defend a federal legislation (even where, like here, the legislation is still enforced), Congress has standing (even one branch) to do so.  I find this a bit curious (part of the whole?) and the majority opinion did not find it necessary to decide the matter.  T

Some have noted the "dog's breakfast" shall we say nature of Kennedy's opinion. Well, we should be used it by now. I think the overall nature of the opinion is fairly clear though if one looks closely, some confusion might arise, especially if you are not sympathetic about his approach. The opinion basically honors state discretion over marriage though noting obviously the federal government does have the power to regulate in the field. Perhaps for that reason, it does not rest on federalism, but equal protection. The jurisdiction discussion, both overall and prudentially, also was sound. A request for benefits was denied and whatever the Administration's sympathies, it wasn't being granted. It basically adds, just don't' make a habit of this sort of thing.  

Still, various points of the opinion has that caliber -- it is particularly notable that DOMA in an unusual way (sort of the Sebelius/Shelby principle again) restrains states in an area they traditionally (yes, tradition was ironically cited in this context) have mostly free reign. This is a sort of red flag along with evidence of a bare desire to harm ala Romer/Moreno etc. No intermediate scrutiny for sexual orientation generally per the request of the Obama Administration. The expected "rational basis plus" language with a new "unusual" wrinkle. Still, when explaining how the federal government is hindering states, it uses language that logically can be applied against other states too:

DOMA undermines both the public and private significance of state sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive.

The opinion says this in the context of states that chose to sanction same sex marriage. The ability of states and the people therein to do this was noted. It is a strand of the opinion. See also, Jonathan Rauch's Gay Marriage, which fully supports the legitimacy and morality of SSM, while pushing for a state by state recognition approach. But, as with Lawrence v. Texas not addressing marriage specifically, even more so, drawing the line there will not be possible at some point.

A likely next step, especially as we run out of states that can pass SSM by simple legislation, are attacks on state DOMAs using such language. Are they not too on some level "unusual" burdens per usual state practices in respect to marriage? Andrew Koppelman, e.g., in his book noted that even interracial marriages in the Jim Crow South were not as broadly blocked from recognition as at least some state DOMAs require at least if applied literally. And, do they not violate the 14A for the reasons cited? The national DOMA, however, is particularly problematic, and it is a principled and sound argument to focus on it specifically.

One curious thing here is marriages in D.C., which has same sex marriage. The ruling struck down Sec. 3 of DOMA (Sec. 2 allows non-recognition and is largely redundant though has a few troubling applications and is bad symbolically**) without any indication that D.C. marriages or marriage recognition by the military etc. would be treated differently. It was not an "as applied" matter, even though the logic of the focus on the states would seem to make it such. This is a problematic aspect of the ruling just as ignoring the dissent below in Heller, the dissent that noted D.C. is different for 2A purposes because it is not a "state." Federal regulation of D.C. firearm regulations are different in various respects as national laws affecting the states. Same here though it still would be a problem for equal protection reasons. Would a DOMA federal law only applied to D.C. or the military be treated differently by the USSC?

One more thing. Justice Thomas silently went along with the dissents in each case. He concurred separately in the Indian Adoption case to note that constitutional doubt as to state control over domestic relations required the specific interpretation of a statute with various possible meanings. Federalism was raised as a reason for some otherwise sympathetic with his overall jurisprudence. This is where the rubber meets the road. He remained silent. To be fair, cf. Gonzales v. Raich.

I provided a few thoughts on the Prop 8 case in the footnotes. Gov. Brown set things moving to issue marriage licenses to same sex couples once the injunction in place was lifted. Will there be any more complications in that department?!  For instance, will an appropriate party arise that will challenge a same sex marriage at some point?  Notable there that Prop 8 has limited legal effect given protection of domestic partnerships, but perhaps one can be found.  The ultimate end of this story, especially given the drawn out twists and turns that have occurred already, is a clear reversal of Prop 8 by the people of the state.

And, how will the DOMA ruling influence same sex partner benefits in the immigration arena?  To be continued all around.

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* Let me say that I'm sympathetic to the dissent, especially in light of the possible negative results of the majority opinion overall. Honesty dictates that prudence as to the merits is a factor here (likely a motivation for at least some of the justices in the majority, even if they disagreed on the merits), though sure sure, we are supposed to be concerned with legal principles. Still, the development of the law, including on same sex marriage, is a factor here, prudence a legal principle as much as any other. Also, Walter Dellinger's brief explaining why standing should be denied was to me honestly quite convincing. The majority very well might not be on the same ground as his reasoning in all particulars, but really, I did find it convincing. I have a liberal view of standing and jurisdiction overall. The majority does reflect current more conservative rules all the same.

The breakdown of the dissent -- one more time for Scalia/Thomas to break apart -- can be explained in various ways, along with the overall idea that they disagreed with the majority on the merits of the standing question. The dissent does not address the merits of the constitutionality of Prop 8. The four justices probably don't agree on them. The dissent honors state discretion in ways Thomas would find appealing, he also more open to "judicial activism" generally than Scalia. Alito's dissent in DOMA showed no love for the district ruling, so even without going into the merits, he might have be loathe to in effect allow it to be the final word on the question.  Also, he actually supported jurisdiction in DOMA.

** For instance, if non-recognition is allowed even for judgments, it could lead to various complications. Also, there is a minority viewpoint that even though Congress has the power to determine the "effects" under the FFCC, they must do so in a "general" way that could be violated here. The reasoning might be somewhat along the lines of the majority opinion.

CJ Roberts in his dissenting opinion by the way suggested the title of the legislation was not really worth of note as if the "defense of marriage" act that singles out certain types of marriages to the detriment of same sex couples is a trivial thing. Alito's strong dissent underlines that you can't have it both ways here -- an important thing was done here from the title on down. And, that is why for me the whole did is unconstitutional, it is as a whole a violation of equal protection and the right to marry.