Writings of a techie wizard
Thu, 28 Mar 2013
Some interesting items have come out of yesterday's oral arguments before the Supreme Court on the Defense of Marriage Act case. Since I've blogged about this case before, I wanted to take a look at the Court's handling of it.
The first thing I noted is that the Court appointed an amicus curiae to present arguments for the position that the Court did not have jurisdiction to hear the case. This is unusual since neither party to the case had taken this position. However, the case is also unusual in that both parties agree with the lower court decision; neither one is asking the Supreme Court to reverse it. This is what raises the jurisdictional issue: since there is no actual controversy between the parties, why should the Court rule on the case at all?
The reason the case is before the Court is that the Obama administration wants the Court to uphold the lower court decision, which would have the effect of striking down DOMA, which the administration believes is unconstitutional. Of course this raises the question: why is the administration enforcing a law it thinks is unconstitutional? The administration's position is that it is obligated to enforce laws even if it disagrees with them, because Article II of the Constitution says that the President shall "take care that the laws are faithfully executed". But Chief Justice Roberts responded to that:
This reminds me of Roberts' opinion on the individual mandate portion of Obamacare, where he basically said that the Court can only rule on whether a law is constitutional, and a law that is constitutional may still be a bad law; it's the job of elected representatives, not the Court, to determine whether a law is good or bad. It will be interesting to see if any of this comes through in the final opinion.
Later on, the point was raised that President Obama, who made a determination that he believed the Act was unconstitutional, is not the President who signed it into law--that was President Clinton, in 1996--which could affect the decision on whether or not to enforce it. If a President determines that a bill is unconstitutional when it reaches his desk for signature, he can simply veto it. But if a President believes that a law signed by a previous President is unconstitutional, he may still choose to enforce it out of deference to the previous President who signed the bill and the previous Congress that passed it. A ruling from the Supreme Court would break this kind of deadlock. (Later on it was pointed out that when DOMA was being considered by Congress, it asked the Clinton Justice Department three times if the proposed Act was constitutional, and all three times the response was that it was.)
Another interesting point arose during the next argument: since the Executive Branch is basically asking the Court to declare a law passed by Congress unconstitutional, shouldn't Congress be a party to the case as well? One key aspect of this is that the Executive Branch is the one litigating the case, making decisions as to how it's argued, whether or not to appeal to the next level of courts, etc., even though the Executive Branch doesn't believe the law is constitutional. As the lawyer making the argument puts it:
Justice Kennedy remarked in response that this "would give you intellectual whiplash. I'm going to have to think about that."
But in the rebuttal argument of the amicus, a good response to this was given:
In other words, for better or worse, the Constitution says that the President, not Congress, executes the laws, and that includes litigating them when they are challenged in court.
I was pleased to see that the arguments addressed the issue of government benefits given to married people, since I said previously that this was the key issue, because of the Constitution's guarantee of equal protection of the laws to all citizens. But I was disappointed to see that not much attention was paid to the fact that the 14th Amendment applies the equal protection provision to the States, not just the Federal government, so if it is unconstitutional for the Federal government to restrict the definition of marriage on equal protection grounds, it must be equally unconstitutional for a State to do so. In fact, the first argument on the merits explicitly assumes the contrary:
Justice Ginsburg did raise a question about what happens if Federal law doesn't recognize a marriage that a State has recognized:
This question eventually led to a good summation of the 1996 Congress's motivation for passing DOMA in the first place:
But, as the ensuing discussion made clear, DOMA doesn't actually do this. It privileges the traditional definition of marriage, so States that uphold that definition get to "decide for themselves", but States that adopt same-sex marriage do not; their decision is constrained by the fact that they know the Federal government under DOMA does not recognize same-sex marriage. The lawyer tried to argue that DOMA simply codifies a uniform definition of marriage for the purposes of Federal law, on the theory that when previous Congresses passed laws that used the term "marriage", they meant that term under its traditional definition. But Justice Kagan pointed out:
Which of course it did; Congress explicitly said that the law was for the purpose of protecting the traditional definition of marriage, and did not recognize same-sex marriage because homosexuality was morally wrong. This fact was referred to several times during the arguments.
The Solicitor General did make an equal protection argument when it was his turn to speak:
But this still applies the equal protection analysis only to the Federal law. Later on, the question of State laws outlawing same-sex marriage was brought up, and the Solicitor General did say that those would have to be looked at on equal protection grounds as well. But then he basically said that's not relevant to this case, which is only about what a Federal law can properly exclude:
In fact, towards the end of the Solicitor General's brief, Justice Sotomayor asked him point blank:
And the Solicitor General responded yes; but then Justice Sotomayor asked:
In other words, we don't want to hear about whether States outlawing same-sex marriage is unconstitutional; that's not part of this case. In fact, the ensuing discussion suggests that, not only is it not part of this case, but that fact in itself gives the equal protection argument less weight in this case, in the Justices' minds. It seems like the Court might shy away from ruling DOMA unconstitutional on equal protection grounds, precisely because that would imply that State laws outlawing same-sex marriage are also unconstitutional on equal protection grounds.
During the next brief on the merits, Chief Justice Roberts posed an interesting question to the lawyer for the woman who originally brought the case in lower courts (she was married in Ontario to a same-sex partner, but was forced to pay estate tax in the US when her spouse died because her marriage was not recognized under DOMA): would there be an issue if Congress passed a law recognizing same-sex couples as being married for purposes of Federal law even if the State they lived in did not permit same-sex marriage? The concern here is not equal protection but federalism: can Congress ever adopt a different definition of marriage than the States?
The Chief Justice commented that everyone kept "returning to the Equal Protection Clause every time I ask a federalism question". But given the discussion that followed, I can see why. The lawyer kept trying to say that there isn't a single blanket answer to the federalism question because it would depend on the circumstances, but the Justices kept pressing her to give a blanket answer anyway. This makes one wonder whether the Court is looking for a way to rule on DOMA's constitutionality without having to do so on equal protection grounds, because of the broad implications that the latter type of ruling would have.
Towards the end, the issue of benefits was brought up once more:
But nobody made the obvious rebuttal that, if DOMA is upheld, a same-sex couple that moves from West Point to Fort Sill in Oklahoma won't get the benefits in the first place; to say that well, then they won't have to worry about losing them, is not much comfort.
But just after this, the most interesting argument is given, right at the end of the transcript. I'll quote it at some length because I suspect it is going to be referred to a lot:
What is interesting about this is that the lawyer invokes "the democratic process", which is a pet phrase of Justice Scalia, and he invokes it to make precisely the kind of argument that Scalia likes: the Federal government shouldn't interfere in issues like this. But this lawyer is arguing for upholding DOMA. In other words, he is arguing that the Federal government should not interfere in the democratic process, and his definition of "not interfering" is to uphold a Federal law that imposes a definition of marriage which the "democratic process" in a number of States has rejected.
Of course this kind of sophistry fits right in with the view I have taken in my previous posts on the Supreme Court. Compare, for example, the position I expect Justice Scalia to take in this case, in line with the above argument, with the position he has taken on abortion in a number of cases (most notably in his dissent in Planned Parenthood v. Casey):
As far as the actual question at issue is concerned, I've made my position clear before and I see no reason to change it: to me, the equal protection argument is sufficient to strike down DOMA. It is true, as I noted above, that this argument would also imply that State laws forbidding same-sex marriage are unconstitutional. But note carefully why this would be. It isn't because States can't define what "marriage" is; it's because States, like the Federal government, attach lots of benefits to being "married". If States are going to do that, then defining "marriage" in any way that excludes a class of people violates equal protection. It's that simple.
The right solution to this problem would be for the Federal and State benefits to attach, not to "marriage", but to some legal status that has no social connotations. For example, people could make a legal commitment to form a "household", or designate each other as "significant others", in order to get the benefits. Of course such a legal commitment would have to be something more than just saying so: it would have to involve the same sort of signing of contracts and filing of paperwork and agreeing to legal conditions that marriages and civil unions do now. But it would be a separate thing from the social designation of a given couple as "married", which could then be left up to whatever social circles the couple belonged to.
Unfortunately, such a solution is almost certainly not politically viable in the US today. We just can't help passing laws that help to increase friction between different parts of our society instead of helping to reduce it. We just can't help using political power, when we have it, to try to entrench our particular view of how things should be, instead of making it easier for people with different views to coexist. That's a shame, since allowing people with different views to coexist is what the United States of America is supposed to be about.
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