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DOMA and Selective Deference to Congress

[ 146 ] June 26, 2013 |

[UPDATE]…welcome Dish readers! More coherent thoughts here.

Shorter John Roberts, Antonin Scalia, Clarence Thomas, and reasonable, moderate, thinking person’s most reactionary justice since James McReynolds Sam Alito: “Congress may not have the power to prevent discrimination, but it certainly has the power to deny the equal protection of the laws.”

Scalia’s dissent, in light of Shelby, is (to use his phrase) jaw-dropping:

It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.

Shameless, you have to give him that.

Also, apparently Roberts’s “equal sovereignty” theory was good for all of 24 hours.

Good for Kennedy and the Democratic nominees for a major civil rights victory.

…Scalia is right to say, though, that the majority “robs the winners of an honest victory” by refusing to explicitly apply heightened scrutiny.

UPDATE: Prop 8 goes down too. Will have much more on both cases, but let me briefly say that while I’m happy Prop 8 will be struck down standing is the worst grounds for a good outcome: it’s a pernicious argument. The courts shouldn’t be foreclosed from hearing appeals just because the current government declines to defend a law.

…the Perry majority coalition was odd: Roberts, Scalia, Ginsburg, Kagan, and Breyer. I guess nobody trusted Kennedy on the merits? If Kennedy was prepared to strike down Prop 8 on the merits, the 3 Democratic appointees in the majority screwed up royally, because this is a bad precedent.

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  1. actor212 says:

    Now my LGBT friends have no excuse: they can stop being gay and start being miserable like married heterosexuals.

  2. Josh G. says:

    Did Scalia throw a tantrum from the bench this time?

  3. Bizono says:

    The cognitive dissonance re: the excerpt from Scalia’s dissent above is breathtaking.

  4. rea says:

    Good old Kennedy–not completely insane, just mostly.

    • sharculese says:

      Kennedy’s dissent says pretty much everything I would have said about Perry. I’m not totally on board with his argument in II-C, but it’s a pretty trivial quibble.

  5. Joshua says:

    I am no lawyer but even I whiffed the BS when putting these two opinions side-by-side.

  6. TT says:

    “The world is made for people who aren’t cursed with self-awareness.”
    -Annie Savoy

  7. JKTHs says:

    Scalia’s complete lack of self-awareness is at Alito levels.

  8. anthrofred says:

    Slightly OT: Why is SCOTUSblog not covering this live right now?

  9. Bijan Parsia says:

    I skimmed through and just couldn’t keep going when I got to Scalia. The shameless and the…weirdness…were so over the top.

  10. Jon H says:

    Somebody check Scalia for Cordyceps infestation.

  11. Another Halocene Human says:

    Can any of you erudite lawyers explain to this layperson why the “full faith and credit” clause isn’t applicable to DOMA? Didn’t DOMA explicitly exempt same-sex marriages alone from being respected by other states, even though states ignore consanguinuity all the time in respecting marriages performed in other states. And you don’t have to retest for your license when driving through another state even if the state you got your license in has laxer rules than the one you’re in.

    • rea says:

      Art. IV, Sec. 1:

      Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

      In other words, there is an express grant of power to Congress (kind of like Am. XV, sec. 2) to declare the effect of a marriage in one state in another state. But of course, exercise of that power by Congress is subject to the rest of the constitution

      • Another Halocene Human says:

        Oh, snap. Okay. That shit was explained to me wrong back in high school then.

        Thanks.

      • cpinva says:

        “But of course, exercise of that power by Congress is subject to the rest of the constitution”

        sorry, i’m being dense here, could you please be more explicit? thanks.

        • rea says:

          Like, for example, the 5th Amendment guaranty of equal liberty of persons–although note that the new decision does not deal with the “full faith and credit” aspects of DOMA

        • squareloop says:

          In this case the power limit the effect of the “full faith and credit” clause in regards to marriage is subject to the equal protection clause of the constitution. The ruling says that limiting marriage in this way is a violation of “the rest of the constitution” and is therefore invalid.

          • rea says:

            Uh, no–this decision did not reach the issue of whether, or example South carolina has to recognize a California gay marriage. It only says that the federal government has to recognize such a marriage. The specific issue was whether a couple married under New York law is married for pusrposes of the federal estate tax.

            • squareloop says:

              Oops. I stand corrected!

            • catclub says:

              The next question is whether a couple married under massachusetts law is considered married under texas law.
              Then whether it depends on same sex versus opposite sex couple.

              I think texas will just have to rule that all marriages in massachusetts do not count in texas.
              So more like licenses to practice law than licenses to drive.

              • sharculese says:

                Given Rick Perry’s hubristastic campaign to poach high-skill workers from New York, I can’t imagine even he being stupid enough to do that.

    • Richard says:

      That part of DOMA was not challenged in the case before the court

    • Murc says:

      Can any of you erudite lawyers explain to this layperson why the “full faith and credit” clause isn’t applicable to DOMA?

      In addition to what’s been said above me in this thread, there’s also a longstanding public policy exemption to the full faith and credit clause.

      You use a driver’s license analogy, that you don’t have to get a new license in every state. That’s true. But! If a state decided to issue no driver’s licenses to anyone ever, you couldn’t get a license in one state and use it to drive in another. It isn’t required to extend you full faith and credit if the thing it would be extending it to violates the public policy of that state.

      So DOMA was completely unnecessary to stop states from being forced to recognize the validity of same-sex marriages against their will; as will mixed-race marriages half a century ago, they could just argue that they allow NO gays to marry, because it’s contrary to their public policy. That’s all they need up until the point when, like said mixed-race marriages, banning gay marriage is struck down on equal protection grounds.

  12. Shakezula says:

    Or they just hate the nxxxxxs more than the qxxxxxs. (A leetle bit.)

    • anthrofred says:

      Maybe they were just exhausted. Discrimination can be thirsty work.

      • Another Halocene Human says:

        They find poor people disgusting, whereas money can wash off most sins. Rich, influential people, the cocktail party set, was pushing SSM, whereas the people who benefit from VRA are either poor or can be easily classed in with the poor and from their rank xenophobia can take over. Do Blacks get the worst of it? Hell to the yes, and in an uglier form.

        But it all starts with a virulent disgust towards the bootless.

        • Another Halocene Human says:

          Though I am not saying classism is greater than racism. Plessy v. Ferguson was the triumph of racism over class status. Perhaps driven by a reactionary revulsion towards the rapidly burgeoning Black middle class and the emergence of a Black elite.

          • anthrofred says:

            I think both your original point and your qualification are right. Within the halls of the Heritage Foundation, I would not be shocked at all if the class issue was less subtext and more explicit re: the minority vote.

        • Michael H Schneider says:

          Rich, influential people, the cocktail party set, was pushing SSM,

          Right. That’s the absolutely crucial point: this is a case that narrows the reach of the death tax, and saves the hardworking taxpayer some $350,000 in taxes.

          Obviously we’re looking forward to the development of equal protection doctrine that says that if single mothers earning minimum wage only pay a small amount in federal income tax, then hedge fund managers who earn hundreds of millions should pay an equal dollar amout.

          I also expect a decision soon holding that while imposing a death tax was constitutional at the time, the fact that today inequality reflects only different levels of effort rather than advantages in birth make the whole death tax unconstitutional.

          It’s also clear that while the federal government has the power to regulate interstate commerce, federal efforts that affect intra-state commerce are an unconstitutional burden on state sovereignty. Thus, the federal government can only tax income that’s used in interstate commerce, and any expenditures made within a state must be tax deductible.

    • UserGoogol says:

      It’s apples and oranges. If the situation was flipped and there was a decision as to have preclearance to make sure states don’t pass laws which discriminate against homosexuals, I’m sure the Supreme Court would quite happily find a majority to abolish that preclearance. (Although precisely because it’s apples and oranges, that’s kind of a silly metaphor.) It’s a matter of how much discrimination they think they can justify, not just oh we hate the blacks but the queers are cool.

      (And again, if nothing else, I assume Clarence Thomas doesn’t hate black people all that much, even if he seems quite consistent in making decisions black people will hate back.)

  13. anthrofred says:

    Roberts:
    Interests in uniformity and stability am-
    ply justified Congress’s decision to retain the definition of
    marriage that, at that point, had been adopted by every
    State in our Nation, and every nation in the world

    Re: “every nation in the world”, this may have been true when DOMA passed, but was certainly not true when the case was brought before the courts. Also, I thought we weren’t supposed to care about the laws of other nation states, but I digress.

    • anthrofred says:

      Bad tagging. Bad!

    • Another Halocene Human says:

      I thought Denmark was there when they passed that law. And didn’t South Africa have SSM in its early 1990s constitution? Denmark might have been a CU/DP sort of law but that was a big deal at the time.

      • anthrofred says:

        Denmark allowed partnerships in 1989, but marriages in 2013, with the law explicitly defining those partnerships as definitionally different from marriage, so Roberts would be technically correct. Likewise, while SA prohibited discrimination in its constitution, the Marriage Act (with its definition) wasn’t invalidated until 2004. Or so says Wikipedia; I used the word “may” because I Am Not A Lawyer.

        I still think it’s a lame way to start a dissent.

        • Keaaukane says:

          He should have gone with a knock knock joke.

          • sharculese says:

            Knock, knock.

            Who’s there?

            Not Western civilization.

            Not Western civilization who?

            Not Western civilization because it’s moral underpinnings have just been knocked out by homosexualist activists.

        • Candy's Dog says:

          The reason gay marriage is recent in Denmark is because they still have an official state religion (Church of Denmark). They finally reasoned that, if gay people’s taxes were paying for the Church then the state had to grant them marriage licenses.

    • Hogan says:

      Does that mean they’re going to impeach Roberts for invoking foreign law?

  14. Shakezula says:

    Quickly on Prop 8: I’m reading this as a punt back to the state and so no impact beyond California. But then, I am sleep deprived and cranky. Am I also wrong?

    Also

    …Scalia is right to say, though, that the majotity “robs the winners of an honest victory” by refusing to explicitly apply heightened scrutiny.

    Unless this is something found in strip clubs.

  15. Kurzleg says:

    It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.

    I’m not sure I’m seeing the point of this statement. If that’s not the SC’s role, then what is it?

  16. JKTHs says:

    Alternative shorter: “We should defer to democratically-elected representatives, except when we don’t feel like it.”

  17. Incontinentia Buttocks says:

    I was about to ask about what you speculated in the concluding sentence: was this a strategic decision by Ginsburg and Kagan in Perry (am I wrong to think that Breyer might actually buy the standing argument )

    • rea says:

      Occam’s razor–the decision represents the actual division of the Court on the somewhat novel standing issue, and isn’t justices playing 11-dimensional chess on the merits of gay marriage.

    • Another Anonymous says:

      The standing holding was as good as we were going to get from this Court, this Term. I’m not vexed about it.

  18. sibusisodan says:

    From Scalia’s summary:

    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

    Couldn’t you just make up a power in order to invalidate it? After all, it’s what you did yesterday…

    • cpinva says:

      “Couldn’t you just make up a power in order to invalidate it? After all, it’s what you did yesterday…”

      in someone’s chambers, their head did a 360 twirl.

  19. Rachel says:

    I read the Prop 8 decision as being less bad on standing than I thought. By my reading, an individual is always free to challenge a crap law, even when the government will not defend it, and in that case, the decision will stand because regardless of who the wingnuts were for the defense, the plaintiffs have standing. However, only a real party in interest can then appeal the decision. The plaintiffs could have appealed, but they won, so yay! (Great decision by Justice Walker, byw.) The defendants can appeal, but only the “real” defendants, not the wingnuts. It is also kind of a great decision in a way because it goes to great lengths telling traditional marriage advocates that they just do not have a stake in marriage equality, sort of what Keith Olberman said, “What is it to you?” So, Walker’s opinion is all good and stands, it is just the appeal to the Ninth Circuit that was improper.

    • sharculese says:

      Two things:

      1) In the future things could be reversed, with a wingnut judge striking down a progressive initiative. I

      2.) Just as a general rule, standing is already too restricted, and we don’t need more hurdles to jump through.

      • Darkrose says:

        I don’t actually have a problem with saying that unless you can articulate why a piece of legislation is harmful, you don’t have standing to defend it. The Yes on 8 crowd couldn’t articulate this because there was no reason other than “EW! BUTTSECKS!”

        • sharculese says:

          I think it is an injury when the law you sponsored and passed via a democratically instituted process is overturned in court, regardless of your motivations in passing the law, and especially when your state Supreme Court says that’s how the law was supposed to work, and I find the Court totally unpersuasive in saying this is a generalized grievance.

          • Hanspeter says:

            So if I gave $5 to Random Proposition that somehow passes, and then when no one else wants to defend it in court, I can step up and get standing?

            • sharculese says:

              There’s a lot of ground between giving a nominal donation and organizing a ballot initiative, getting it approved, and then running the campaign in favor of it.

          • Another Anonymous says:

            But I think the Prop 8 backers’ beef is with their own state. I agree that citizens in general don’t get to step into their state AG’s shoes.

            • sharculese says:

              I would argue they’re injured by both, and a normal appeal is a more sensible recourse than a separate suit to force the AG to defend the law (which seems a dubious proposition to me).

    • rea says:

      The defendants can appeal, but only the “real” defendants, not the wingnuts.

      And of course the complication is that the law was passed by popular initiative, not by the Legislature. As the whole point of popular initiative is to enable the people to act when their elected representatives won’t, there is indeed a reasonable argument that the proponants of the initiative ought to have standing to appeal when the elected representatives decide not to.

      • sparks says:

        “We paid considerable money to have this passed, and we got hosed!” seems like an injury some of the Supremes might lend a sympathetic ear to.

        • Ed says:

          “We paid considerable money to have this passed, and we got hosed!” seems like an injury some of the Supremes might lend a sympathetic ear to.

          As pointed out previously and noted in the dissents, the proponents of the initiative did a good deal more than merely throw money at the issue, regardless of what you think of their cause.

          • sparks says:

            Note that I said “some of the Supremes”, indicating those who are much addicted to expanding the rights of monied organizations over individuals. Especially the one known as the Republican Party, who will see to it the others are protected and exalted over individuals.

            How much the proponents of the initiative did is really of no issue, and their “cause” was mere bigotry smothered in religious language and wrapped in many dollars.

            Personally, I prefer a burrito.

      • Tyto says:

        Seconding Rea’s point. Though this is a huge double-edged sword, one solution to the problem is including a private right of action in legislation/initiative.

        Also, though this is a different fact pattern, I await a GOP administration’s refusal to defend, for example, provisions of the Clean Air and Clean Water Acts. Theoretically, if the Dems had one house, they could resolve to fund a defense of the law, but if not, and absent a private right of action, I have no trouble seeing this SCOTUS refuse standing to private litigants, even though they could probably demonstrate actual harm.

  20. Anon21 says:

    If Kennedy was prepared to strike down Prop 8 on the merits, the 3 Democratic appointees in the majority screwed up royally, because this is a bad precedent.

    I doubt that’s what happened. But I will say that Windsor tiptoes right up to the line on heightened scrutiny, and makes federalism a distinctly minor theme despite what Roberts says. I think Kennedy is already convinced that marriage equality is constitutionally required, but for political reasons he would prefer to wait three years to say so. I don’t know where that left him on the merits in Hollingsworth. But I see in Windsor a very deliberate decision to draft an opinion giving maximal aid to the marriage equality argument without actually endorsing it as a nationwide rule.

    • UberMitch says:

      This is more right than my below. Scalia’s red-faced screaming about it in his dissent (he even breaks out strikethrough font!) is the best thing I’ve read in years.

    • DivGuy says:

      If Kennedy would prefer to wait, why did he author the dissent in Perry, saying that the court should have ruled?

      I think the issue here is that no one, perhaps not even Kennedy, knows what he would say, but Kennedy wants to be special and powerful and get to decide.

      • Anon21 says:

        I admit, I don’t know. Perhaps he knew early on that there were five votes to deny standing, so he decided to write on that. There’s no obvious equilibrium here; if Kennedy forthrightly expressed his views about the merits, I have to think that the four Justices who agreed with him could have set aside their deeply-held beliefs on standing in order to get the merits decision they wanted.

        What might best explain the lineup we got is Kennedy forthrightly expressing the view that marriage equality is not constitutionally required, but Roberts deciding, perhaps with an eye towards the long game of keeping the courthouse doors closed, to decide it on standing anyway; Roberts got most of the libs to go along to avoid the possibility of a bad merits decision. But as I say, I find it very hard to believe after reading Kennedy’s Windsor opinion that he actually believes states can discriminate against gay couples in their marriage recognition. It’s all pretty confusing, but I am damn sure that it wasn’t the liberals who refused to take “Marriage equality for all!” for an answer.

        • sharculese says:

          but Roberts deciding, perhaps with an eye towards the long game of keeping the courthouse doors closed, to decide it on standing anyway

          I suspect this is a large part of Scalia and Roberts’s calculus, too.

    • cpinva says:

      “I think Kennedy is already convinced that marriage equality is constitutionally required, but for political reasons he would prefer to wait three years to say so.”

      you think he’s worried about being re-elected? I don’t think he has much to………………..wait, never mind!

      • Anon21 says:

        Supreme Court Justices are intensely political creatures, even if they don’t run for election. I think it’s difficult to explain Roberts’s vote to uphold the individual mandate as a tax last term except as a political act meant to preserve the Court’s institutional legitimacy.

        • John F says:

          I disagree, I think Roberts’ take on the Commerce Clause was wrong, so you didn’t need to reach the tax authority argument, but once reached he had to rule as he did because the mandate absolutely 100% was allowed under the Constitution’s taxing authority, which even the dissent sort of admitted (the crap about if it was called a “tax” we would vote to uphold but it’s not called a tax so…)

          the dissent OTOH was purely political.

  21. UberMitch says:

    Re your last point on the strategic voting concerns, it has to be that Kennedy was prepared to issue some shitball substantive opinion and actually set the cause back, right? There’s no other way this makes sense.

    • DivGuy says:

      But then why did Roberts and Scalia join the majority against standing?

      I guess you could argue that they’re playing a long game and hoping to strike down other laws de facto through the standing dodge, but then why wouldn’t Alito join them? He’s just as shameless.

      The simplest explanation, I think, is that the other eight justices are just as baffled by Anthony Kennedy’s legal “reasoning” as any layperson. So they’re just guessing.

      • UberMitch says:

        You are likely right on the money with Roberts and Scalia; if they (apparently) don’t have the votes to stick it to the gays, then they aren’t going to pass up an opportunity to narrow standing. But you are also right that Alito is confounding here.

  22. DivGuy says:

    …the Perry majority coalition was odd: Roberts, Scalia, Ginsburg, Kagan, and Breyer. I guess nobody trusted Kennedy on the merits? If Kennedy was prepared to strike down Prop 8 on the merits, the 3 Democratic appointees in the majority screwed up royally, because this is a bad precedent.

    True, but the same applies mutatis mutandis to Scalia and Roberts.

    I really have no idea how to read that–other than that the other justices have absolutely no fucking clue what Anthony Kennedy thinks about anything.

    • cpinva says:

      “I really have no idea how to read that–other than that the other justices have absolutely no fucking clue what Anthony Kennedy thinks about anything.”

      i’ll buy that. it would put them right with the great majority of the rest of the population.

  23. David Hunt says:

    What I’ve read about the DOMA case is that Section 3 of DOMA that defines marriage on the federal level as “one man & one woman” was struck down. What effect, if any, does this have on states without Same Sex Marriage recognizing (or not) the marriage of a same-sex couple legally married in a state with SSM?

    • sharculese says:

      None. Section 2 wasn’t at issue here, because New York recognized Windsor’s marriage.

      • David Hunt says:

        I was afraid of that. I’m a CPA in Texas. I had hoped, but not expected, for there to a clear guideline immediately apparent on how to handle the filing status of same-sex couples legally married in other states. Texas has no personal income tax, so usually only federal income tax returns need be filed. My initial impression from what I’m reading is that such couples file their federal return together as a married couple, as they are married from the federal government’s POV.

        There seems to be the possibility of a married couple with income in a state that doesn’t recognize their marriage and the need to file separate “single” status returns with those state, but that scenario was there there before.

        It’s all hypothetical for me at the moment as we’re a small office with no clients who are same-sex couples that were married out-of-state, but I expect that I’ll see it eventually.

        • sharculese says:

          From what I understand I think they can file joint federal returns, but there are people here more qualified to respond than I.

          • David Hunt says:

            That’s what it sounds like with one minor quibble of terminology below. I’m not one of the people qualified to opine on the legal consequences of the ruling.

            Quibble: if you’re married, both you and your spouse are required to list your filing status as “married.” and list both yourselves on the return(s). You can file a single return with status “married filing jointly” where all income and deductions are combined into a single pot or file two separate returns with status of “married filing separately.” When filing separate returns, income and deductions are divided between the the two spouse. The method of division depends on whether they live in a community property state.

            I believe when you said you thought “they can file joint federal returns,” that they would have the option of filing as a married couple. That’s not quite correct as married couples are required to file with a married status. There, are however two married status options: “married, jointly” and “married, separately.”

            I just read the above and realized that it sounds incredibly anal. Sorry. I not a good enough writer to explain it tersely, and I my only other mode of writing is excessively verbose.

            • sharculese says:

              Thanks for the correction. I’ll keep that in mind in the future.

              And no, it didn’t come off too anal. Detailed explanation is always better.

        • Just Dropping By says:

          There’s no IRS guidance concerning cousin marriages or similar relationships that may be legal in the state where they were originally performed, but not recognized in another state?

      • David Hunt says:

        p.s. Thanks for summary of the interstate status issue.

  24. Joe says:

    Alito fans should read his dissent in DOMA. I can see why he didn’t want to simply punt after reading some of his potshots at the district court judge in Prop 8.

    Kennedy didn’t address the merits in Prop 8 which is curious given that the logic of his dissent would seem to suggest that would be required. There is problems with the majority’s approach though I was semi-convinced with Dellinger’s argument on the point.

    Problems: http://balkin.blogspot.com/2013/06/perry-and-constitutionalization-of.html

    • sharculese says:

      His dissent didn’t have to address the merits though, since he’s just responding to the majority, and I can see two good reasons not two. First, he probably didn’t want to tip his hand about where he stood on marriage equality. Second, not reaching the merits made it much more likely to get all four dissenters on board for a clean 5-4 split instead of a bunch of messy split opinions.

      • Anon21 says:

        It actually all went exactly backwards today: in Hollingsworth, Kennedy finds standing but then inexplicably refuses to address the merits. In Windsor, three of the cons (Roberts, Scalia, Thomas) found no standing, but then merrily tore into the majority’s merits decision anyway, even though they supposedly have no power to decide the case and thus no reason to offer their opinions.

      • Joe says:

        I agree it was “canny” and he didn’t have to, but usual practice is that when you dissent such an avoidance and would rule on the merits, you explain your position. Not always, yes, but it’s common practice.

        • sharculese says:

          I mean, yeah, it’s customary, but there’s no penalty for violating custom and in this case I think plenty of reasons to do so. It’s frustrating that we don’t know where he stands on the merits, it’s just that I think that was kind of the point.

          • sharculese says:

            Put another way, when it comes to the Supreme Court and custom, I’m woefully unconcerned, because at this point who knows what the fuck.

            • Joe says:

              Sure. And, his comments during oral argument was pretty clear. He didn’t want to have to talk about the merits there. Alito and Thomas would have, Sotomayor might have, but he was loathe to do so.

  25. Sly says:

    Roberts:

    “I agree with JUSTICE SCALIA that this Court lacks jurisdiction to review the decisions of the courts below. On the merits of the constitutional dispute the Court decides to decide, I also agree with JUSTICE SCALIA that Congress acted constitutionally in passing the Defense of Marriage Act (DOMA). Interests in uniformity and stability amply justified Congress’s decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world.”

    Scalia, with Thomas joining:

    “This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. 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.”

    Alito:

    “The Constitution does not codify either of these views of marriage (although I suspect it would have been hard at the time of the adoption of the Constitution or the Fifth Amendment to find Americans who did not take the traditional view for granted). The silence of the Constitution on this question should be enough to end the matter as far as the judiciary is concerned.”

    I think, at this point, they’re just trolling.

  26. Aaron B. says:

    It should be noted that even though DOMA has been struck down it doesn’t ensure equal benefits for all SSM couples. Because federal agencies use different standards to determine who is married – some use a “place of residence” standard and others use a “place of celebration” standard – many SSM couples who are married in one state but residing in a state where SSM is prohibited won’t be eligible for many benefits.

    President Obama can change all of this at the stroke of a pen by issuing an executive order mandating a uniform place of celebration standard. Here’s my Whitehouse.org petition to that effect.

    This would mean that, effectively, everyone in the country would be able to get a federally recognized same-sex marriage.

    • Joe says:

      Good stuff to think about, but what is the basis of the different standards? Does it have anything to do with the statutes involved? I think such a major change in marriage policy (same sex marriage is not the only thing that will be affected) should be legislatively handled if possible. At least, I’d like to know the logic of the policy.

      • Aaron B. says:

        Some definitions are statutory (the SSA’s and the DVA), and those would obviously need to be changed by an act of Congress, but many others are purely regulatory, so the President has executive discretion to direct them to change their policy.

    • ironic irony says:

      “It should be noted that even though DOMA has been struck down it doesn’t ensure equal benefits for all SSM couples. Because federal agencies use different standards to determine who is married – some use a “place of residence” standard and others use a “place of celebration” standard – many SSM couples who are married in one state but residing in a state where SSM is prohibited won’t be eligible for many benefits.”

      I’m interested to see how the military handles this: the military doesn’t have a place of residence requirement for marriage- if you have a marriage license issue to you by a state, you are married, period. Your military benefits follow you wherever you are. How will they handle service members married to same gender partners while stationed in foreign countries?

      • Aaron B. says:

        According to OPB, the DoD uses a “state-of-celebration” criterion, meaning that as long as you have a valid marriage license in a state you can get the various benefits and privileges administered through the DoD. However, according to the same article, Veterans’ Affairs uses a “state-of-residency” criterion, so once you come BACK from the military your spouse will stop getting health insurance.

        This is a perverse rule and Obama can (and should) issue an executive order to rectify this inconsistency. Hence why I’m promoting my petition.

        • ironic irony says:

          “However, according to the same article, Veterans’ Affairs uses a “state-of-residency” criterion, so once you come BACK from the military your spouse will stop getting health insurance.”

          That sucks balls. Will be signing your petition.

          As for what happens to same sex spouses when their service member ends up stationed in, say, Germany, Italy, Japan, etc., I suspect the answer will lie within SOFA agreements.

  27. [...] is that the court has no right to strike down DOMA. In doing so, Scalia says, the Supreme Court has overstepped its authority. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the [...]

  28. [...] Scalia’s main point is that the court has no right to strike down DOMA. In doing so, Scalia says, the Supreme Court has overstepped its authority. [...]

  29. [...] were similar arguments on the left, like this from Scott Lemieux: [L]et me briefly say that while I’m happy Prop 8 will be struck down standing is the [...]

  30. SarahC. says:

    I have to say, I’m not sure I agree that the Prop. 8 decision was a bad one on the merits. I don’t see it being that likely that a governor (or the legislature or some other elected official) would refuse to defend a voter initiative and be able to do so without facing a backlash from the public that voted for the initiative in the first place. Also, I didn’t want there to be a tacit admission that the opponents of SSM are harmed by SSM; no harm, no standing for private citizens (which is what the Prop. 8 proponents were). For most other kinds of laws, I’m pretty sure private citizens would be harmed, not just because they don’t like it, but as a substantive matter. (Paul Waldman on American Prospect gave the hypothetical of pollution laws; but there, of course private citizens can show harm from pollution). SSM isn’t that kind of issue and I think the only reason the CA gov’t was able to get away with not defending it was because Prop. 8 wasn’t very popular with the public from almost immediately after it was passed. Most (if not all) issues don’t experience such a huge sea change in opinion as quickly as SSM has.

    And I don’t think Windsor is inconsistent; BLAG was speaking for the House that, as a legislative body, has an official interest in seeing that duly-enacted laws (however stupid) be enforced. The Prop. 8 proponents had no official status whatsoever but were only private citizens that no one chose; it’s not like they asked the voters for permission before intervening. And as for giving an executive tacit permission to kill laws he doesn’t like by not defending it, even Obama defended DOMA for 3 full years and no one thinks it’s because he liked it. I think there are enough political constraints to prevent an executive from flatly refusing to defend a law in most cases.

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