DOMA Is Mostly Dead…

I’ve got lots of thoughts on Windsor, obviously. But let’s start with Edith Windsor herself, who actually won the case, got her marriage recognized by the federal government, and got over $300,000 of her money returned from the IRS. Here she is, with my friend (and her lawyer) Jaren Janghorbani, as she finds out that she won her case.

Jaren and Edith

If you’re reading this blog, you’ve probably already read plenty of summary/analysis of the various opinions. If not, just go to SCOTUSblog. They have everything. So here’s my value-add: random thoughts about the case!

1. What now? — First of all, as my friend Nate Hartshorn pointed out (on FB, so no link; sorry Nate!), DOMA is not dead. It’s only mostly dead. The Supreme Court struck down DOMA’s federal rejection of same-sex marriage. But DOMA still permits states to reject other states’ same-sex marriages. That exception from the general “Full Faith and Credit” requirement still stands… for now.

2. Why is Scalia a hypocrite? — I dislike claims of judicial hypocrisy. For example, in Bush v. Gore, everyone was all up in arms. “Hey conservative Justices!? I thought you loved state power?! But now you’re all about federal imposition on the states!? Hypocrites!” Okay, fine. But it’s not like Bush v. Gore was a 9-0 decision. The liberal Justices were on the other side as well.

I had a similar reaction to all the accusations of hypocrisy thrown at Justice Scalia this morning. In his dissent in Windsor, Scalia is all about judicial minimalism and deferring to the policy judgments of Congress. “Where was that yesterday in the VRA case!?” people yelled. But again, where was Justice Ginsburg’s skepticism of congressional power in Shelby County? All the Justices were on opposite sides on both cases.

Personally, I side with the dissent in Shelby County and with the majority in Windsor. Does that make me a hypocrite? I don’t think so. I just think that the Civil War Amendments give Congress the power to intrude on state power to protect civil rights and to prevent racial discrimination, but that nothing in the Constitution gives Congress that power with respect to denying state-created rights to same-sex couples. Justice Scalia has the opposite view, but I don’t think that makes him a hypocrite. He just thinks Congress has more power to legislate “morals” and less power to burden states based on “stale” forty-year-old discrimination.

3. State dignity vs. individual dignity. — The concept of “dignity” has been front and center the past two days–both in Shelby County and in Windsor. But the Court’s idea of “dignity” is very different in the two cases. Chief Justice Roberts was very concerned with the “dignity” of the states covered by the VRA. The federal government’s preclearance requirement was an affront to that dignity.

Justice Kennedy could have taken a similar path in Windsor. Regardless of whether you think DOMA was motivated by animus against same-sex couples, it was clearly a federal attempt to reject certain state-created rights. And DOMA treats different states differently. If you’re a state with same-sex marriage, DOMA rejects your definition of marriage. If you’re a state with “traditional” opposite-sex marriage (no matter how else you define/regulate it), then DOMA accepts your definition of marriage.

But Justice Kennedy did not focus on the “dignity” of New York, or Massachusetts, or any other state that has recognized same-sex marriages. Surely, DOMA’s rejection of those states’ laws of domestic relations is an affront to those states’ dignity. Instead, Justice Kennedy focused on the dignity of the individual citizens within the states–the individuals whose rights were stripped away by DOMA.

I tend to find the individual dignity argument more persuasive. For one thing, individual/minority rights are the sorts of things the courts are good at protecting. But the battle between state interests and the federal government–that seems like the sort of thing better suited to structural concerns. I mean, we’ve got the Senate, right? That’s got to count for something.

4. What now (Part II)? — Now that DOMA (at least the federal part) is gone, the federal government and various agencies need to figure out what to do with same-sex marriages. Justice Scalia makes this point in dissent: Given the different ways states recognize marriages, the feds now have to figure out how to overlay federal spouse-related rules/regs on top of this state-law patchwork. (Scalia saw the avoidance of this question as a permissible/rational basis to uphold DOMA.)

With respect to the SEC and the accredited investor definition, my friend and former colleague Bill Carleton is on it over at his blog, Counselor @ Law.

5. Federalism, Novelty, and Skepticism. — Yesterday, in the context of the VRA decision, I wrote briefly about how the novelty of the VRA’s preclearance requirement and the ACA’s individual mandate seemed to bring on a heightened level of judicial scrutiny. Well, today the Court was at it again. Justice Kennedy specifically relied on the novelty of DOMA’s intrusion on the states’ traditional area of domestic law as a reason to be especially suspicious of Congress’s intentions:

“‘[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’” Romer v. Evans, 517 U. S. 620, 633 (1996).


In determining whether a law is motived by an improper animus or purpose, “‘[d]iscriminations of an unusual character’” especially require careful consideration.

So everyone be on the lookout for my forthcoming article: Novelty and Skepticism in Constitutional Jurisprudence. (Kidding.) (Kind of.) (Maybe not.)

As an aside, and I admit I have not thought about this too much, I don’t think there’s anything really wrong on a federalism level with a federal definition of marriage for purposes of federal statutes. Justice Kennedy talks about how, for example, in copyright cases courts sometimes have to figure out who a widow is for determining copyright ownership, and the courts look to state law. And of course they do. But that doesn’t mean they would have to. It’s just that there’s no federal law of “widow”-ness for the court to rely upon, so it’s more a matter of necessity. A claim under the Copyright Act is a claim that arises under a federal statute, so there’s no Erie issue. It’s just a case of the federal common law incorporating the state laws of marriage/widows as the rule of decision. (Right?) But if Congress wanted to pass an amendment to the Copyright Act determining who can or can’t be the transferee of a copyright after death, I think that would be fine–provided that Congress’s choices didn’t infringe on some other sort of right (i.e., “You can only pass on your copyrights to your sons, not your daughters).

6. Standing, jurisdiction, and the “case or controversy” requirement. — Obviously, the Court reached the merits of the case. But there was an ancillary question: whether the Court even had jurisdiction to hear the case in the first place.

Normally, a federal court can only hear a case if there is an actual “case or controversy” involving parties that have “standing.” This means there must be both (a) an actual live dispute and (b) litigants with an actual stake in that dispute. So if I want to know whether a certain law is constitutional, I can’t just to go court and ask for the Court’s decision on the matter unless there is some controversy involving me and the statute.

Well, Edith Windsor seems to satisfy those requirements pretty easily. The IRS took her money because of DOMA and she wants it back. Actual case, actual controversy, actual harm to the plaintiff. But here’s the problem: the Executive Branch (i.e., the President and the IRS) agreed with Windsor that DOMA is unconstitutional. So after the lower courts held that DOMA was invalid, the federal government and Windsor both agreed that decision was correct. Poof! There goes the controversy (at least according to Justice Scalia).

So what does Justice Scalia think should have happened? Well, it’s pretty interesting. He’s big on checks and balances. According to him, if the President thinks a federal law is unconstitutional, then the President should just say that and refuse to enforce it. If Congress then wants to “force” the President to enforce the statutes that it passes, Congress has various arrows in its quiver: it can refuse appropriations, refuse to approve appointments, impeach the guy, etc. It’s a constitutional power struggle, just like the Framers intended! But what can’t happen, according to Justice Scalia, is for the President to just ask the Court to issue advisory opinions when the Executive and the individual both agree on the answer. Here’s his take:

If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing to confirm Presidential appointees to the elimination of funding. (Nothing says “enforce the Act” quite like “. . . or you will have money for little else.”) But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so.

Okay, but the President is enforcing DOMA. This is exactly what happened. Congress (or political pressures generally) forced the President (and the IRS) to apply DOMA. It played out exactly like Justice Scalia said it should. But what Congress can’t do is force the President to change his view of the constitutionality of the statute.

So what should the President do if Congress “wins” this game of chicken? Should he enforce the statute but then tank the brief–just put forth a terrible effort defending the statute? Maybe hire some fourth-rate law firm to do the work? That doesn’t sound right. Should he put forth a constitutional argument that he doesn’t believe? He should lie to the Court? That doesn’t seem right either.

Perhaps, in the situation Justice Scalia imagines, where Congress has forced the President’s hand, the President should be honest about his views; he should state that he believes the statute is unconstitutional and tell the courts as much. But then, to faithfully execute his office and the acts of Congress, he should make sure someone, some party or entity, comes forward to vigorously defend the statute, thereby avoiding any sort of half-hearted efforts.

Um… isn’t that what happened here?

I don’t really see the problem with the lower courts and the Supreme Court letting BLAG take the laboring oar as amicus or intervenors. Seems totally fine to me. The President’s position seems reasonable: The Executive will continue to enforce the statute until the Supreme Court decides its constitutionality, and then the Executive will respect the Court’s decision. Otherwise, what? The IRS applies DOMA or doesn’t apply it depending on the judicial district? Or one “loss” in one district court makes the rule for the entire country? Seems odd.

7. “Case or controversy” and the merits. — Apart from the President’s novel constitutional and litigation strategy, there’s another aspect to this case that makes standing and the “case or controversy” requirement especially knotty: there’s no injury on the other side. Many times, if the Executive enforces or refuses to enforce a statute in a certain way, then some people will benefit while others will suffer a harm. In those cases, no matter what the President does, there will be someone who disagrees–and who is actually harmed–who can sue the government.

But with DOMA, it’s difficult to think of a real plaintiff who could sue the IRS for failing to enforce DOMA. One could maybe imagine a same-sex couple suing the IRS to enforce DOMA because they don’t want to pay the federal marriage penalty? “We don’t want you to recognize our marriage because then we’d have to pay more in taxes!” But I just can’t imagine that happening.

It would just me much simpler if the federal recognition of same-sex marriage actually harmed someone. Then that person could sue when the Executive declined to apply the statute. But since same-sex marriage causes no harm to anyone, it’s hard to come up with those kinds of plaintiffs. And we wind up with this weird sort of “controversy.”

8. The evolving tone of Justice Scalia. — Maybe it’s just me, but from Romer to Lawrence to Windsor I see a slight shift in the tone of Justice Scalia’s opinions. The older opinions seem to be more like this: “Of course
we have laws disapproving of homosexuals! I thought the point of passing laws was to express moral condemnation of morally contemptible acts!”

And while there is still some of that in Windsor, it reads a bit more like this: “How dare you accuse Congress of passing a law based on animus toward homosexuals!” Maybe that’s progress? (And to answer your question, I’m using the term “homosexuals” because that’s Justice Scalia’s go-to nomenclature. No need to email me.)


One thought on “DOMA Is Mostly Dead…

  1. You omitted my vital citation to authority, though: Monty Python and the Holy Grail and its “Bring Out Your Dead” scene. (And it occurs to me that “mostly dead” isn’t Python, it’s Miracle Max (Billy Crystal) in The Princess Bride. Somehow I find it easier to envision DOMA as the old guy slung over John Cleese’s shoulder than as a KOed Cary Elwes.)

    As for this:
    Should [the President] enforce [DOMA} but then tank the brief–just put forth a terrible effort defending the statute? Maybe hire some fourth-rate law firm to do the work?

    Well, on the lawyers’ end, that’s far too workable to be a hopeless Underpants Gnomes scheme, right?

    Phase 1: Set up fourth-rate law firm.
    Phase 2: Tank brief.
    Phase 3: Profit!

    Given that Phases 1 and 2 seem, by hypothesis, to be light work, it’d be a pretty sweet gig, no?

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