Taps for DOMA

By Cyberquill 06/29/20132 Comments

U.S. Supreme Court

The Defense of Marriage Act is dead.

(To be precise, only §3 of DOMA, which for all federal purposes defined marriage as “a legal union between one man and one woman as husband and wife,” has been ruled unconstitutional, but that’s close enough.)


What’s not so good is the manner in which it was put to the sword.

A few days before the decision in United States v. Windsor, which would effectively kill DOMA by striking down its §3, was handed down, one John Sarratt, a Raleigh attorney, unrelated albeit referring to this very case, summed up his personal judicial philosophy in response to a speech by Justice Antonin Scalia in North Carolina, in which the latter adumbrated his rather predictable dissent in the upcoming United States v. Windsor by advocating democracy over intervention by “unelected judges” on issues of morality.

Said Mr Sarratt:

I tend to be outcome-based. And if the outcome is equality for all people, then I’m for the courts moving in that direction, before the people are ready.

And if the looming outcome were inequality, then Mr Sarratt, presumably, would be for the people moving toward equality and to hell with the courts, or the Constitution, or anything else for that matter.

See, in order to be “outcome-based,” all we need is our own personal sense of right and wrong. I don’t know about you, but I don’t need any external instructions, such as hallowed documents that open with “We the People,” to guide me toward my preferred outcomes. I can determine those on my own. Everybody can.

What people who advocate “outcome-based” jurisprudence fail to understand to a disquieting degree is that if the end of attaining a desirable outcome justifies running roughshod over anything in its path, then the end of attaining a not-so-desirable outcome by others down the road will justify the same, as the “outcome-based” method has now been introduced as acceptable precedent.

And since the overtly “outcome-based” crowd’s darling, the so-called “living” Constitution, whose provisions have no set meaning but simply mean what they ought to mean on a given day with respect to a given issue (as opposed to the properly dead Constitution, whose provisions mean what they mean regardless of outcomes desired), reflects the evolving standards of decency in a civilized society, then, by extension, it must likewise reflect society’s evolving standards anytime these standards “evolve” in the wrong direction, i.e., away from rather than toward a more civilized state, conceivably even back to times pre-constitutional, thus divesting the Supreme Law of the Land of any decency-protecting properties it would otherwise exert.

But I digress.

Back to United States v. Windsor, the case that put paid to DOMA.

Just pause and reflect on the case name for a moment:

United States v. Windsor

Supreme Court case names are styled petitioner v. respondent, indicating the parties whose dispute the Court has been petitioned to resolve, with the word “versus” sandwiched in between to indicate the existence of an actual disagreement between those parties.

In this particular case, a widowed lesbian named Edith Windsor had sued the United States for a refund of an estate tax she claimed the United States had wrongfully collected from her. Although her home state of New York recognized her same-sex marriage, the federal government, via DOMA, denied such recognition, wherefore Ms Windsor failed to qualify for the marital federal estate tax exemption that she would have qualified for had her deceased spouse been a man. Consequently, she contested the constitutionality of DOMA on grounds that it violated “the guarantee of equal protection, as applied to the Federal Government through the Fifth Amendment.”

Pretty straightforward so far, except a wondrous thing happened en route to the Supreme Court: President Obama, his finger to the political winds in the runup to his 2012 reelection, fetched a 180 regarding same-sex marriage and pronounced DOMA unconstitutional himself, which meant that the defendant in this case, namely the United States as represented by the Department of Justice, now officially agreed with the plaintiff.

Unlike supreme courts in other countries, who are free to rule on the constitutionality of whatever law the wish whenever they see fit, the U.S. Supreme Court’s power of judicial review, as set forth in Article III of the U.S. Constitution, is restricted to actual cases and controversies that come before it. Thus, it may only rule on a law’s constitutionality if doing so is necessary and incidental to resolving a living and breathing controversy in its lap, so to speak, and if the law in question has caused real injury on a real plaintiff that the plaintiff seeks to redress.

The dispute between the litigants prior to this case’s arrival at the Supreme Court’s doorstep having been resolved already, the question naturally arose if and by what measure the Court even had jurisdiction to rule on it, for how can you have a case called “A versus B” if A and B have already buried the hatched and hence aren’t positioned versus each other anymore?

Addressing the manifest “complication” of standing (a legal term that refers to the question of whether there actually exists enough of a conflict among the litigants for a court to spring into action), Justice Kennedy’s majority opinion in United States v. Windsor devotes its opening pages to explaining why and how the apparent inappropriateness for the Supreme Court to rule on this case’s merits—given that the Unites States sought no redress from the judgment entered against it at a lower appeals court, which had ruled that DOMA’s §3 was indeed unconstitutional and that Ms Windsor was entitled to a refund of the federal estate tax she had paid—“elides the distinction between two principles: the jurisdictional requirements of Article III and the prudential limits on its exercise.”

Whatever the exact nature of this alleged elision, Justice Scalia, in top sardonic fighting trim, had a field day turning Kennedy’s rationale on its ear in his dissent.

For instance, not only had the United States sought no redress for its injury of having to issue a tax refund, but via its Solicitor General, who wrote in his brief that “the judgment of the [lower] court of appeals should be affirmed,” it specifically asked the Court not to redress it. This circumstance prompted Scalia to quip that “[o]ne could spend many fruitless afternoons ransacking our library for any other petitioner’s brief seeking an affirmance of the judgment against it.”

Keep in mind that even though both litigants in this case asked the Court to do exactly the same thing, namely to declare DOMA unconstitutional, the case was nonetheless christened “United States versus Windsor.” More aptly, it should have been named United States and Windsor versus To Whom It May Concern and Who Isn’t a Party to This Litigation.

Anyhow, in making his case that a justiciable controversy obtained after all, Justice Kennedy first put forth that an injury does not cease to be an injury just because a masochistic litigant explicitly requested to sustain it:

That the Executive may welcome this order to pay the refund if it is accompanied by the constitutional ruling it wants does not eliminate the injury to the national Treasury if payment is made, or to the taxpayer if it is not. The judgment orders the United States to pay money that it would not disburse but for the court’s order.

Then he adds that “a controversy sufficient for Article III jurisdiction” existed owing to the ongoing refusal by the United States to actually pay the refund it had petitioned the Court to order that it pay.

Put differently, the official declaration of DOMA’s unconstitutionality by the Supreme Court would provide the requisite kick in the pants for the United States to issue the refund it desperately wanted to issue anyway, and therefore “a controversy sufficient for Article III jurisdiction” was present, the non-controversy between the litigants over whether or not the refund should be issued notwithstanding:

It would be a different case if the Executive had taken the further step of paying Windsor the refund to which she was entitled under the District Court’s ruling.

Perhaps because Justice Kennedy himself doubted whether the fact that Ms Windsor hadn’t yet received her refund constituted sufficient grounds for Article III jurisdiction, or perhaps because he simply felt like padding his case a little, he cited an amicus curiae brief by the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives, emphatically defending DOMA’s constitutionality, as a further source of controversy to bestow legitimacy upon the Court’s ruling:

One consideration is the extent to which adversarial presentation of the issues is assured by the participation of amici curiae prepared to defend with vigor the constitutionality of the legislative act.

Basically, an amicus curiae is someone that’s not a party—nor has been solicited by any of the parties—in a given court case but whose perspective is admitted into the proceedings to provide “relevant matter” that “may be of considerable help” to the judges in deciding the case.

So here, it seems, because the nominal adversaries in United States v. Windsor had become bosom buddies prior the case having reached the Supreme Court, BLAG was invited to inject an element of antagonism, without whose presence there would have been no conflict for the Court to resolve, hence no standing.

The case, however, was still called “United States v. Windsor,” not “United States v. BLAG.” Is Justice Kennedy, backed by the four other Supreme Court justices that joined his opinion, seriously suggesting that Article III’s “Controversy” requirement is satisfied by regarding an adversarial position held by a third party as if that position were held by one of the actual litigants in the case?

If that is so, then the age of universal standing is upon us, for someone will always be found to present an opposing point of view on virtually any issue under the Sun in case the litigants have stopped disagreeing with each other.

In an apparent attempt to preëmpt the backlash that could be expected to follow such a painfully obvious judicial power grab as having set the precedent of affording Article III “Controversy” status to virtually all controversial matters by way of simply inviting adversarial amici to weigh in, Kennedy cautioned thus:

The integrity of the political process would be at risk if difficult constitutional issues were simply referred to the Court as a routine exercise. But this case is not routine.

In other words, forget Article III—henceforth, Supreme Court jurisdiction shall extend to all cases the Court itself deems “not routine.”

The question of standing now being settled in the affirmative, Justice Kennedy then proceeded to declare all who ever supported DOMA as having been motivated by “a bare […] desire to harm a politically unpopular group” in endorsing a law whose “principal purpose” was “to demean those persons who are in a lawful same-sex marriage.” [emphases mine]

In short, everyone who ever considered it a good idea that marriage be codified as a union between exactly one man and one woman was, in fact, a bigot driven by a desire to demean, and every seemingly innocuous alternative justification that may ever have been put forth by any of these terrible people constituted but rank malice in sheep’s plumage.

Perhaps so, yet although Supreme Court opinions usually abound with reams of reasoning, arguments, and citations to back up every single claim that’s being made, often ad nauseam, Justice Kennedy opted for an implied res ipsa loquitur in lieu of enumerating at least a selection of reasons in support of DOMA that had been presented in a form other than “because we want to demean homosexuals” and explaining why those reasons, at bottom, meant nothing other than “because we want to demean homosexuals.”

If you think about it, not even an institution as reprehensible as slavery was driven primarily by a desire to harm and demean. For the most part, it was driven primarily by a desire for cheap labor coupled with gross indifference toward the suffering of blacks.

So to suggest that, relative to the days of slavery, American society had devolved to a point where as late as the 1990s a law was passed by Congress at the behest of the American people, and signed into law by President Clinton, the primary purpose of which was to “harm” and “demean” a “politically unpopular” class of people, is a truly extraordinary charge.

For crying out loud, even Noam Chomsky (!) is on record saying that the U.S. has waxed “far more civilized than it was [50] years ago,” when Kennedy (the President, not the Justice) gave orders to bomb South Vietnam.

Speaking of presidents, the grand prize for the most remarkable utterance regarding the Supreme Court ruling under discussion goes to Barack Obama, who somewhere on his current trip to Africa stepped in front of a microphone and proudly pronounced the verdict in United States v. Windsor to be a—get this!—“victory for American democracy.”

In what sense invalidating a democratically enacted law, no matter how invidious or unconstitutional that law might have been, by a small panel of unelected judges might possibly constitute a victory for democracy as opposed to a victory for the precise opposite of democracy, as is the Supreme Court’s power of judicial review, only a former constitutional law professor may be able to explain.

Of course, if, by way of whatever recondite rationale, the recent 5-4 ruling in United States v. Windsor, striking down a key provision of the Defense of Marriage Act, is indeed a victory for Amercian democracy, then the equally recent 5-4 ruling in Shelby County v. Holder, striking down a key provision of the Voting Rights Act of 1965, must be a victory for American democracy as well.

Yet somehow, we haven’t yet heard President Obama refer to the latter ruling as such.

Maybe, like the aforequoted attorney from North Carolina, the president tends to be “outcome-based,” too.

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  • Richard

    It would be interesting to know the availability of declaratory judgments in the US.

    In English law, the Court becomes seized of a matter on the issue of proceedings and retains the power to pronounce judgment irrespective of the wishes of the parties.

    On the question of jurisdiction, the legal status of the constitution is no different from any other law and can be developed in the same way. This is less likely where there is clear statute law, since Parliament is supreme, but even then statute can become obsolete.

    This does not prevent their Lordships in the UK Supreme Court (formerly the House of Lords -- nothing much more than a name change) from making mountains out of molehills and issuing obscure and prolix judgments turning on the minutest of points. No doubt the object is to clarify the law but their proceedings go largely unnoticed by the public at large unless you are a member of the legal club. So much for the democratic will or principle of outcome, whatever you like to call it.

    You are right to draw attention to the decline of the rule of law. The law should, of course remain supreme, or, at the very least, lip-service paid to it. President Obama’s intervention verges on the unconstitutional, former professor or not. He should stay out of issues being dealt with by the judiciary, or has he now also assumed legislative powers?

    • http://blog.cyberquill.com/ Cyberquill

      Although he has no legislative powers per se, as chief executive the president is the chief law enforcement officer of the land. He certainly has the power to criticize, or even to stop enforcing, laws he deems unconstitutional, and so it is perfectly in context for him to express relief over the Supreme Court agreeing with him regarding the constitutionality of a particular piece of legislation, or to scold the Court for disagreeing.

      Moreover, in this particular case, the United States, as represented by the Department of Justice (not to be confused with the judicial branch of government), which is part of the executive branch and as such beholden directly to the president, happened to be one of the litigants. In essence, the president himself was sued.

      Also, all three branches of government, that is, all individual actors that comprise these branches, are sworn in to uphold and defend the Constitution. Interpreting the Constitution isn’t the exclusive province of the courts, although, for pragmatic reasons, the tradition has taken hold that the Supreme Court has the final say regarding the constitutionality of a statute. Still, a constant tug-of-war between the three branches is sort of built into the American system, and you can hardly accuse someone of improper “intervention” when they do what they have sworn an oath to do.

      That aside, there’s a First Amendment, so the notion that speaking out on any issue by anyone, including by the president, might “verge on the unconstitutional” sounds pretty alien to American ears.

      As to declaratory judgments, as far as I can tell, the entire legal system in the U.S. operates on the old maxim of nullo actore nullus iudex (= wo kein Kläger da kein Richter = where there’s no plaintiff, there’s no judge), and that seems to apply to constitutional matters as well.

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