Sunday, June 30, 2013

Supreme Court on DOMA: The Right Ruling for the Wrong Reason

The Supreme Court recently ruled on two landmark cases regarding gay marriage. This post is my reaction to the first and more important of those rulings, US vs. Windsor.; a later post will react to the second case, which was Hollingsworth vs. Perry.

In the case of US vs. Windsor, the Court ruled for Windsor, and struck down Section 3 of the Defense of Marriage Act. The Defense of Marriage Act (aka DOMA) was a 1990’s act of Congress that defined marriage – for the purpose of all federal laws – as a union between one man and one woman, regardless of any state law which defined marriage differently. However, this week’s Court decision ruled this unconstitutional. The basis for this decision was the Due Process Clause of the 5th Amendment, which states “No person shall be…deprived of life, liberty or property without due process of law.” The 5-4 majority argued that to withhold federal benefits from couples entitled to them under state law amounted to the deprivation of those couples’ liberty. Consequentially, the most meaningful parts of DOMA were struck down.

The practical implication of this ruling is that the federal government must now grant equal benefits to whichever marriages the states legally recognize. This paves the way for full marriage equality in the 12 states in which gay marriage is already legal, specifically Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York, Washington, Maryland, Maine, Rhode Island, Delaware and Minnesota. Thanks to the outcome of the second case, California will soon join that list as well.

As a supporter of marriage equality, I was naturally pleased by the practical short term outcome of this decision. The fact of the matter is that many more homosexual couples will receive fair and equal treatment now than they would have previously, which means conditions were improved from an equality perspective. It’s easy for con-law enthusiasts like myself to get wrapped up in high-falutin’ theoretical concepts, but we shouldn’t let that blind us to the immediate consequences of political events where the rubber hits the road. In the short term, the consequences of this event are wonderful.

Additionally, I support the final ruling at which the court eventually arrived even as a matter of legal principle, because it returns a traditionally state power to the states. As I’ve written previously, federalism is a necessary and valuable feature of our constitution, and it’s important to limit the federal government to the specific powers it was granted. Defining marriage is certainly not within the federal government’s enumerated powers, and has traditionally been handled at the state level. It’s rare these days the Court tells Congress it can’t do something, so actual shrinkage of federal powers is ample cause for celebration.

Of course, it’s not that clear cut, because DOMA only defined marriage as it relates to eligibility for federal benefits. Those benefits are funded by taxpayers across the country, many of whom don’t want their tax dollars going to same sex couples. It’s even trickier for libertarians because we oppose giving special government benefits to any couples in the first place, and feel neither the state nor federal governments should define marriage at all. Nevertheless, it’s important to keep the governments’ roles in line with what the framers had in mind, and a national definition of marriage just seems inconsistent with the federalist system they devised. For as long as marriage licenses have been given out, they’ve been given out at the state level. Congress has never had a say in who was or wasn’t married – it’s simply not up to them. Their desire to distribute benefits selectively does not change that legal reality. If Congress really must use marriage as a determining factor for benefit eligibility, they have to accept the factually correct, legally binding, locally determined definition of what marriage is. So I think the court had solid constitutional justification for their ruling.

The trouble is, that’s not the justification the Court used. After echoing many of the sentiments I laid out above, Justice Kennedy stopped short of endorsing the supremacy of state’s rights in his majority opinion:

“Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism.”

So why did the majority separate the case from those principles? And if they weren’t going to use federalism as the basis for their decision, why did Kennedy initially spill so much ink extolling its relevance?

The answer is that the justices in the majority, the ones that most wanted to strike down DOMA, don’t generally agree with my interpretation of the constitution. In the modern political landscape, support for state’s rights comes almost exclusively from conservatives. The political left, by contrast, generally wants the federal government to reign supreme over the states, and the Supreme Court is no exception. This put Democratic appointees Breyer, Kagan, Sotomayor, Ginsberg and ultimately the swing-vote Kennedy in a sticky situation. On the one hand, they wanted to strike down this federal law, and return this particular power to the states. But on the other hand, they didn’t want to arm future conservative challenges to federal laws they liked (in fields like economics or education) with precedent that state’s rights were actually supreme. To obtain their desired outcomes across the board, the majority had to cite federalism to strengthen their case in this ruling, without tying themselves to it in future cases.

The way they did this was ingenious for them, but frustrating for people who actually care about states’ rights. Kennedy began his majority opinion by explaining much of what I explained above; “regulating domestic relations” has traditionally been a state function, and the federal government was breaching centuries of legal tradition by reaching into that realm. But instead of concluding that this is unconstitutional on face, Kennedy merely remarked that this was unusual, and then used that irregularity to justify a different way to strike down the law. He writes:

“‘[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’…“DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage... is strong evidence of a law having the purpose and effect of disapproval of that class [gays and lesbians].”

Here we see how the majority was able to incorporate federalism into their opinion while simultaneously ignoring it. Certainly, federalism played a significant role in the courts reasoning. But as you can see in this excellent piece by Ilya Somin of the Volokh Conspiracy, the court ultimately used federalism only to justify a heightened standard of scrutiny on the law’s purpose. Analyzing Kennedy’s opinion, Somin observes:

“what he seems to be saying is that the Congress’ pursuit of purposes beyond the normal scope of federal authority in DOMA makes the law a “discrimination...of an unusual character” and justifies imposing tougher scrutiny under the Fifth Amendment… Kennedy suggests that the level of scrutiny is higher if discriminatory federal laws are intruding into areas generally left to the states.… Under Kennedy’s indirect approach, federalism turns out to be relevant, but only by the back door.”

To the majority, breaching federalism is relevant not because it actually matters on its own, but because it arouses suspicion that something else might be amiss. It appears federal power grabs only trouble them because they’re a warning sign that Congress may have bad intentions. In this case, since the judges determined the lawmakers’ intentions were not so nice, they struck down the law. But in other cases, should the lawmakers’ imagined intentions meet the justices’ subjective approval, the un-enumerated power might be constitutional after all. The federal government’s assumption of power to which it is not entitled, the majority implies, does not mandate that the court rule the law unconstitutional – it merely permits them to do so if they otherwise wanted to.

The rest of Justice Kennedy’s opinion explains in great detail why he and the four other justices wanted to strike down this law. He explains how DOMA’s differentiation between heterosexual and homosexual marriages “demeans” same-sex couples by placing them “in a second-tier marriage.” He opines that this imposes “a disadvantage, a separate status, and so a stigma upon all who enter into same sex marriages.” He laments that this “humiliates tens of thousands of children” raised by those couples, and “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”. He essentially delivers a therapeutic progressive rant about how unjust this law is to anyone as sensible and tolerant as himself.

Furthermore, he concludes that these effects he finds so unfair were not merely an unintentional, happenstance effect of DOMA, but were “the avowed purpose…of the law here in question”. This matters, he claims, because “[t]he principal purpose is to impose inequality, not for other reasons like governmental efficiency.”

These observations are 100% correct. Anyone sympathetic to the cause of gay rights should be inspired by such an eloquent and passionate explanation of what makes DOMA so wrong. But just because something is wrong does not mean it is unconstitutional. How does Kennedy bridge that gap? He concludes:

“What has been explained to this point should more than suffice to establish that the principle purpose and the necessary effect of this law are to demean those persons who are in 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 under the Fifth Amendment of the Constitution.”

Well…why, exactly?

Kennedy articulates well how DOMA contradicts the general spirit of equality most people envision as a constitutional ideal. But he never adequately explains how it contradicts the actual text of the 5th amendment. The Due Process clause to which Kennedy refers states “No person shall be…deprived of life, liberty, or property without due process of law.” But how does the intent to demean a group of people, however unkind it may be, deprive that group of their liberty? Since when do people have a constitutional liberty not to feel demeaned?

Kennedy assures us that “the Fifth Amendment withdraws from Government the power to degrade or demean in the way this law does”, but I don’t see how. So far as I know, there is no precedent to support this (and even if there were, that wouldn’t mean the precedent were correct). Kennedy appears to create this new standard out of thin air because he feels degrading and demeaning people is wrong, and therefore wishes it were unconstitutional. The implications of this are unclear: must every law that differentiates between two groups of people now be checked to see if it degrades or demeans one of the groups?

Next he insists “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.” But even if that bare Congressional desire were proven, where is the disparate treatment? To me, it seems DOMA treats homosexuals exactly the same as it treats heterosexuals – truly, the problem comes from its refusal to discriminate between the two. A gay man and a straight man can marry the exact same set of people, and receive the exact same legal benefits for doing so. They may have different preferences, of course, and those preferences might yield unequal benefits in practice. They may not choose to behave in the same way. But the ways in which they are legally permitted to behave are identical. From a legal perspective, they have the same privileges and the same rights (a man and a woman, by contrast, may not).

What the majority opinion boils down to is that impact of DOMA is really, really unfair, and the motivation for it was really really mean, so…let’s wave our hand, mutter something about the 5th amendment, and get rid of it. That’s insufficient in any case, but it was particularly inadequate in this case because there exist other, more reasonable legal avenues to justify striking down the law. The court passed on those arguments not because they were unsound, but because it did not want to publicly confess their soundness, in anticipation of future cases in which such arguments would be inconvenient to their worldview. Instead, they crafted a new standard that determines a law’s constitutionality not based on whether it’s actually listed in the constitution, but based on the Court’s subjective assessment of the law’s purpose, necessity, and impact.

To summarize, the ruling still did more harm than good. In this case, skimpy judicial logic wound up granting equality to millions of people. It would be heartless not to silently cheer that from the sidelines. But so long as the court insists on jumping through intellectual hoops to apply their preferred framework of “it’s constitutional if I like it”, I can’t give this ruling my full endorsement.

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