Wednesday, June 26, 2013

Supreme Court Strikes Down DOMA but Punts on Same-Sex Marriage Due to Lack of Standing

The Supreme Court ruled today in the case of United States v. Windsor (for background on this case click HERE) that the Defense of Marriage Act ("DOMA") which denied federal benefits to same-sex married couples is unconstitutional.  Similar to yesterday's ruling on the Voting Rights Act, the Court's decision today was split down ideological lines by a 5-4 vote. Only this time, Justice Kennedy (aka the "swing" voter) sided with the progressive Justices of the Court (Ginsburg, Breyer, Sotomayor and Kagan) to strike down DOMA on 5th Amendment Due Process/Equal Protection grounds (which we have blogged about HERE and HERE).
Also today, the Supreme Court ruled in the case of Hollingsworth v. Perry (for background on this case click HERE) that the issue of whether states can ban same-sex marriage could not be decided by the Supreme Court due to lack of standing in this particular case.  [EDITOR'S NOTE: we predicted the lack of standing issue HERE back in March].  In an ideologically mixed 5-4 ruling, Chief Justice Roberts (a conservative), joined by Justices Scalia (a conservative), Ginsburg (a liberal), Breyer (a liberal) and Kagan (a liberal) (who could have foreseen that line up???) ruled that the group who was responsible for putting California's Prop 8 on the ballot (a sate law which banned same-sex marriages in California) did not have proper standing to argue the state law on the state's behalf.  That responsibility, according to the Court, remains with the state itself.  And since the State of California refused to defend Prop 8 in court, there was no standing in this case.

Our break down of each case after the jump:

As we have discussed in one of our previous posts:
DOMA is the Defense of Marriage Act of 1996.  It is a Federal Law that was introduced to Congress by Republican House Member Bob Barr, passed by a Republican-controlled Congress and signed into law by Democratic President Bill Clinton.  So what did it do?  Well, a number of things, but the core of the law (section 3) established the Federal government's position on marriage and, more importantly, established that only marriages between a man and a woman are eligible to receive Federal marriage benefits such as Social Security, Medicare, joint filing of Federal income taxes, etc.
Justice Anthony Kennedy
Justice Anthony Kennedy, joined by the Supreme Court's liberal wing (Ginsburg, Breyer, Sotomayor and Kagan) first argued, as a procedural matter, that the Republican members of Congress had sufficient standing to argue this case on behalf of the Obama Administration (Attorney General Eric Holder, at President Obama's direction, refused to defend DOMA in court).   Moving on to the merits of Kennedy's 26-page majority opinion, Kennedy argued that the right for each of us to get married is a right that is regulated by the States and not the Federal government.  Whenever a State issues a marriage license, Kennedy argues that the Federal government must respect that State's decision.  In the most important part of this decision, Kennedy ruled that DOMA violates the Constitution on Equal Protection grounds:
DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage...DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See [the 5th Amendment to the U. S. Constitution]...The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment. What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.
Chief Justice John Roberts wrote his own 4-page dissenting opinion making three arguments.  First, he argues that the Supreme Court did not have standing to hear this case in the first place.  In other words, when the Obama Administration refused to defend DOMA in court, standing was lost for anybody else to take their place.  Robert's Second argument is a shot against Kennedy for going too far with today's ruling because Kennedy based his ruling on 5th Amendment Equal Protection and not on 10th Amendment State's Rights.  Finally, Roberts points out that the issue of whether States can still ban same-sex marriage is not before this Court:
But while I disagree with the result to which the majority’s analysis leads it in this case, I think it more important to point out that its analysis leads no further. The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their “historic and essential authority to define the marital relation,” may continue to utilize the traditional definition of marriage.
Justice Antonin Scalia took the opportunity to write a 26-page dissenting opinion going IN on today's ruling.  First, he believes that there was no standing for the Supreme Court to hear the case in the first place.  In addition, he vehemently disagrees that DOMA should have been struck down at all, let alone on 5th Amendment Equal Protection grounds:
We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.
In the most revealing part of Scalia's dissent, he devotes several pages chastising Justice Kennedy and the majority for using 5th Amendment Equal Protection to strike down DOMA because it will surely, according to Scalia, pave the way for future marriage equality advocates to use this case as precedent at the state level:
The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.”  I have heard such “bald, unreasoned disclaimer[s]” before. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects”...It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it...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...How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status...As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe. By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity”of same-sex couples.

Justice Samuel Alito also weighed in with his own 17-page dissenting opinion.  Like Roberts and Scalia, Alito also believes that there was no standing for the Supreme Court to hear this case in the first place.  He goes on to argue that the majority opinion incorrectly raised the level of scrutiny applied to same-sex marriage cases from rational basis review (a very low standard which has been applied to sexual orientation issues prior to today) to a heightened standard of strict scrutiny (an extremely high standard which usually invalidates the law in question in favor of the same-sex couple challenging it):

Perhaps because they cannot show that same-sex marriage is a fundamental right under our Constitution, Windsor and the United States couch their arguments in equal protection terms. They argue that §3 of DOMA discriminates on the basis of sexual orientation, that classifications based on sexual orientation should trigger a form of “heightened” scrutiny, and that §3 cannot survive such scrutiny...In my view, the approach that Windsor and the United States advocate is misguided...In asking the Court to determine that §3 of DOMA is subject to and violates heightened scrutiny, Windsor and the United States thus ask us to rule that the presence of two members of the opposite sex is as rationally related to marriage as white skin is to voting or a Y-chromosome is to the ability to administer an estate. That is a striking request and one that unelected judges should pause before granting. Acceptance of the argument would cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools. By asking the Court to strike down DOMA as not satisfying some form of heightened scrutiny, Windsor and the United States are really seeking to have the Court resolve a debate between two competing views of marriage.
~~~~ END OF CASE ~~~

In his 17-page majority opinion joined by Justices Scalia, Ginsburg, Breyer and Kagan, Chief Justice John Roberts essentially argues that the state of California forfeited its right to have this case heard by the Supreme Court when it decided not to defend Prop 8 in court.  By choosing not to defend this law, it created a lack of standing which prohibited anybody else from taking up the argument on the state's behalf - even the group of folks who put Prop 8 on the ballot in the first place:
Federal courts have authority under the Constitution to answer such questions only if necessary to do so in the course of deciding an actual “case” or “controversy.” As used in the Constitution, those words do not include every sort of dispute, but only those “historically viewed as capable of resolution through the judicial process.” Flast v. Cohen, 392 U. S. 83, 95 (1968). This is an essential limit on our power: It ensures that we act as judges, and do not engage in policy making properly left to elected representatives. For there to be such a case or controversy, it is not enough that the party invoking the power of the court have a keen interest in the issue. That party must also have “standing,” which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit. 
[EDITOR'S NOTE: See our blog post HERE for a more detailed explanation on the whole issue regarding the lack of standing in this case.]

Justice Anthony Kennedy wrote a 14-page dissenting opinion joined by Justices Clarence Thomas, Samuel Alito and Sonia Sotomayor.  He argues that the group which put Prop 8 on the ballot actually did have standing under California law and, thus, should have been allowed to argue the case on the merits before the Supreme Court:

Under California law, a proponent has the authority to appear in court and assert the State’s interest in defending an enacted initiative when the public officials charged with that duty refuse to do so. The State deems such an appearance essential to the integrity of its initiative process. Yet the Court today concludes that this state-defined status and this state-conferred right fall short of meeting federal requirements because the proponents cannot point to a formal delegation of authority that tracks the requirements of the estatement of Agency...In my view Article III does not require California, when deciding who may appear in court to defend an initiative on its behalf, to comply with the Restatement of Agency or with this Court’s view of how a State should make its laws or structure its government.

Long story short, the federal government is no longer allowed to discriminate against same-sex couples when it comes to who gets federal benefits such as social security or joint federal income tax filings.  However, after today's punt by the Supreme Court on the California case, states are still free to continue to pass state laws which ban same-sex marriage.  Since the Supreme Court punted on the Prop 8 case today, the original district court ruling -- which found Prop 8 unconstitutional -- now stands in California.  In other words, same-sex marriage is now fully recognized in the state of California.    

It should also be noted that Justice Kennedy's decision to strike down DOMA using 5th Amendment Equal Protection is a significant departure from the Supreme Court's previous rulings about same-sex marriage.  He was expected to rule against DOMA on 10th Amendment State's Rights grounds because doing so would make no pronouncement by the Court as to whether sexual orientation is a protected class that is worthy of Equal Protection analysis.  By using the 5th Amendment, however, Kennedy has made a public statement about same-sex marriage on behalf of the Supreme Court that sexual orientation is worthy of Equal Protection.  This infuriated his fellow conservative Justices and prompted them to write their own dissenting opinions.  Marriage equality advocates can now use today's DOMA case as precedent at the state level to argue that same-sex couples should be afforded the same rights as other married couples.

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