Vol 1 No 20 – After DOMA

Vol 1 No 20 – After DOMA

No matter how you feel about Associate Justice Antonin Scalia’s staunch originalism, his opinions are fun to read; and his dissent on the DOMA decision doesn’t disappoint (“Some might conclude that this loaf could have used awhile longer in the oven. But that would be wrong; it is already overcooked.”)

First, if you’ve just arrived from another galaxy, the background: The Defense of Marriage Act was passed in both houses of Congress by large, bi-partisan, veto-proof majorities and was signed into law by President Bill Clinton on September 21, 1996.  Section 1 provides the Bill’s title; Section 2 makes it clear that States are not required to recognize same sex marriages of other states; and Section 3 adds to Title 1 of the United States Code (aka “The Dictionary Law”) by defining the words “marriage” and “spouse” to exclude same-sex partners, thus limiting the extension of federal benefits to such unions.

Many people had argued that DOMA should not have been enacted in the first place, that Congress exceeded its enumerated powers by attempting to define marriage.  However, it seems perfectly acceptable to me that Congress, acting under the “necessary and proper” clause, should be able to define the terms used in various legislation, and the Supremes seem to agree; their argument is not with the act of defining terms but rather the effect of those definitions.

In a 5-4 decision, the Supreme Court upheld Section 2 of DOMA while ruling that Section 3 was unconstitutional.  Predictably, Justice Kennedy provided the swing vote that allowed the court’s liberal wing to pronounce that “DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”  (The relevant words of the 5th Amendment being: ““No person shall … be deprived of life, liberty, or property, without due process of law.”)  In effect, the Court has done their own bit of re-defining, expanding the traditional definition of “liberty” to mean more than freedom from incarceration.  What else does “liberty” include?  We’ll have to wait for the Court to tell us.

In the very next sentence of the opinion, however, the majority does an about face and declares, in effect, that while the federal government can’t discriminate against same-sex marriage, the States can.  “By history and tradition the definition and regulation of mar­riage has been treated as being within the authority and realm of the separate States.”  The Court has yet to declare the liberty clause of the 5th Amendment as incorporated against the States, but that seems the next logical step, which will render all State prohibitions against same-sex marriage unconstitutional.

I agree with Justice Scalia that the case should not have been heard by SCOTUS, the appeal was contrived from the gitgo to have a purely political effect.  The facts: New York lesbians Edith Windsor and Thea Spyer were married in Canada, where such marriage was legal, and then returned to New York, where their same-sex marriage eventually became recognized.  Spyer died leaving her estate to Windsor, who sought to claim the federal estate tax exemption for surviv­ing spouses, only to have it denied under DOMA.  Windsor sued the federal government.  When the case reached the District Court the Obama administration decided not to defend the case and, even though the House of Representatives Bipartisan Legal Advisory Group (BLAG) stepped in to defend it, the District Court ruled in Windsor’s favor and the Second Circuit Court affirmed the decision.  As Scalia points out, that should have been the end of the matter since the Justice department did not appeal the court’s ruling (having not defended it to start with).  The federal government should have complied with the Court’s ruling, given Windsor her estate tax refund and gone on to more important matters; but the government ignored the District Court’s order, continued to withhold the refund, and thus apparently provided a reason to elevate the case to SCOTUS.

Scalia excoriates the majority view that DOMA was not intended to “defend” anything, only to bring harm to a certain class of people.  “The majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.”

After showing that the majority’s opinion is based not on the law but rather on sociology, Scalia warns, in effect, that this was all a ruse to obtain a ruling that will eventually be used to declare all State laws prohibiting same-sex marriage, those same laws the majority previously said were the exclusive domain of the States, unconstitutional.  “In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion.”

Scalia’s opinion on DOMA’s constitutionality can be summed by his statement that: “It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it nei­ther requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.”

What’s next? In the wake of the DOMA decision, the Freedom to Marry advocacy group announced the “targeting of” (who says liberals can’t use gun-related terms?) Hawaii, Illinois, Oregon and New Jersey to legalize same-sex marriage this next year.

With the “momentum” provided by the decision, a Senate committee is expected to approve a bill that grants protection from discrimination to people on the basis of sexual orientation and gender identity. Goodbye men’s and women’s bathrooms.  Want to marry your cat? Just be patient.

America, we hardly knew ye.