The Supreme Court and DOMA\’s SoberRing

Last week we celebrated the Supreme Court of the United States (SCOTUS) striking down Section 3 of the so-called Defense of Marriage Act (DOMA). And let’s be clear, SCOTUS did not strike down DOMA; it indeed gutted the act, but strike it down completely it did not. The expanding and subtle rant about that is slightly further down, in this uncommonly lengthy article – consider yourself forewarned, but we need to be clear that DOMA is still congressional law. Now, we’ve all seen it on TV: The witness can only answer ‘yes’ or ‘no,’ and is asked a question where she must answer ‘yes,’ but the ‘yes’ is only because of mitigating facts that may or may not come to light. Well, I must admit that while I am assuredly a liberal Democrat who disagrees with most of Justice Scalia’s Opinions and remarks, I must say “yes, Your Honor\” to Scalia’s dissent regarding an “argle-bargle” opinion. United States v. Windsor was poorly written and the final holding was the mother of all judicial disclaimers. BUT this isn’t TV, so I get to share the mitigating facts behind my agreeing with the Justice who so often ruffles my feathers as I work through this Opinion\’s analysis. Fasten your seatbelt… Immediately in the introductory paragraph, we’re given a slight hint about the parameters of the decision when we’re told that Windsor is challenging DOMA’s provision that defines marriage. Next, in the Opinion’s Section I, we’re told flat out, DOMA’s Section 2 hasn’t been challenged here. Mitigating factor #1: Since the Court doesn’t go on to mention a sua sponte action, whereby the Court can on its own inclination consider the entire statute, we’re on notice. Only part of this despicable law is going to be decided by this Opinion. Sidebar: For those of you unfamiliar with Section 2 of DOMA and who haven’t read the Opinion, Section 2 provides that a state can refuse to recognize same-sex marriages legally performed in other states. The Court then explains that the definition provision in Section 3, which defines marriage as “only a legal union between one man and one woman as husband and wife” and confines the term “spouse” to a heterosexual marriage, doesn’t prohibit States from allowing same-sex marriages but it does put a sincere damper on the availability to LGBT married couples of the more than 1000 benefits provided to straight married couples. One of those benefits, upon which the case\’s issue was based, is the right to the spousal estate tax deduction. Yet, even before reaching the case\’s factual issue, the Court had to address whether this case was, in fact, a case. Long ago, it was determined that courts, including SCOTUS, should only hear cases that represented a controversy. Here, there was a question on whether a controversy existed because the Administration agreed with Windsor, the plaintiff. If the government agreed with the plaintiff filing suit against it, then where’s the controversy? In Section II of the Opinion, the Court agrees that a taxpayer’s grievance should be concrete, persistent, and redressable, and that Windsor’s loss of more than $360,000 fit the bill. We all did, even the U.S., so again, where’s the controversy? Who on the U.S. side will be hurt if the U.S. agrees Windsor was hurt? Well, after discussing the issue of regular Article III standing, where a party has to meet those 3 elements mentioned above for it to be a party to a controversy and the ethereal issue of “prudential standing,” the Court finally unveils the interesting idea. It deems that the U.S. Treasury will be harmed because were it not for the lower court’s 0rder to pay the refund, the U.S. Treasury would be $360,000 richer. In other words, though the U.S. agreed with Windsor on principle, because the order for it to pay up put the U.S. government in harm’s way, we have controversy. I’m scratching my head, but we got there… Many questioned the Bipartisan Legal Advisory Group’s (BLAG) right to stand in the controversy, too, but the Court stated that BLAG’s “sharp adversarial position” when considered with the guidance that would be missing from 94 districts across the country and the 1000 laws, rules, and regulations affected, the Court decided in its “prudential” wisdom that BLAG had standing. Several colleagues are still combing the lines of the Opinion’s Section II about that prudential standing stuff, but I prefer to move on to Section III, which is equally, if not more fascinating… In Section III, the Court unravels (?) its reasoning for striking Section 3 of DOMA while maintaining Section 2, the States’ power. Citing Sosna v. Iowa, the Court reasoned that in addition to the lack of discrimination espoused by the Court’s ruling in Loving v. Virginia, which make state definitions of marriage constitutional, states still have the authority to regulate marriage. Once more? A state\’s definition of marriage must adhere to non-discriminatory rules of the U.S. Constitution but the States can determine how that definition plays out. Fascinating. To further elucidate this point, the Court then cites In re Burrus for the rule that all domestic relations regarding a family fall within the legal purview of the States, not the federal government. When the government does something like define marriage, the federal courts generally defer to the States and choose not to hear domestic relations cases. So if a state’s regulation of a constitutional definition of marriage violates the constitution, the courts can look away? Remarkable. Understanding the confusion this section must have wrought, the Court then makes grand gestures: Citing Romer v. Evans, the Court provides that (1) when a law discriminates so blatantly, its constitutionality should be scrutinized; (2) unlike typical laws passed by the federal government to eliminate discrimination, DOMA does the opposite – it’s Fifth Amendment constitutionality must be questioned; and (3) states provide for same-sex marriage because marriage is much more than a myriad of legal rights and benefits – marriage confers a relationship status