legal analysismarriage equality

The Supreme Court and DOMA’s SoberRing

By July 3, 2013One Comment

American Flag, Statue of Liberty, Gay Pride FlagLast 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 Dollar SignII 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 on its couple that is imbued with dignity and equality. Section III ended on all great top notes and one would think DOMA was indeed doomed on June 26. The operative word was “think”…

Section IV of the Opinion illustrates that DOMA and New York law are in direct conflict. It even states that the federal law’s discriminatory effect on several states that were contemplating allowing same-sex marriage was intentional.

Sidebar and mitigating factor #2: Aren’t those several states also part of the “United States”? And since, as the Court stated, DOMA “[wrote] inequality into the entire United States Code,” and that Code affects all states, shouldn’t Section 2 be struck down with even more force than Section 3?

This section of the Opinion not only discusses at great length the inequalities DOMA imposes on same-sex couples, but it also illustrates an inequality imposed on straight married couples. Straight married couples must comply with federal rules and regulations enacted to promote fairness and integrity within the government system, e.g., student loan eligibility of spouses. The Court explained that DOMA removes these compliance issues and thus undermines the government’s ability to create fair laws. Then in a later paragraph, the Court concludes that through DOMA, Congress removed the protection of liberty afforded to U.S. citizens per the Due Process Clause of the Fifth Amendment, and thus violated the U.S. Constitution; therefore, the Court stated, “DOMA is unconstitutional… The federal statute is invalid.” OK. Up we go again, until we reach the last sentence of the final paragraph before the affirmation closing: “This opinion and its holding are confined to those lawful marriages.” Give me a break.

Mitigating factors #3, 4, 5…: If a statute causes all of the aforementioned problems for a select group, for all states, for the “entire United States Code,” for straight married couples, and for the Administration… need I continue?

SCOTUS, you are the final arbiter of our country’s laws. You don’t need to provide a disclaimer.

One cannot provide a sufficient legal analysis of a Supreme Court Opinion discussing at least the worthy dissents. Saving the best for last, with counselor’s remarks in Italics, we’ll start with…

Chief Justice Roberts

The evidence, including legislative history, was insufficient to invalidate the law using rational basis review. More evidence is required to prove that DOMA serves no legitimate government interest.

Objection Your Honor. The government interest of the congressional members that proposed and are proponents of DOMA serves is unconstitutional. The Court just said so.

The Court’s analysis stopped short of answering the real issue: whether States can prohibit same-sex marriage.

Sustained. The Big Elephant in the room still stands strong.

Scalia hat tip: Yes, the holding is a disclaimer.

OMG. I agree with both Roberts and Scalia; if I weren’t pressed for a deadline, I’d faint.

Since the Court did not address the real issue, challenges will come.

Sustained again; the statutory definition that the Court ruled unconstitutional is the basis for all of those mini-DOMAs out there in states like Georgia, Illinois, Texas, and New Mexico, just to name a few. Lambda, get ready!

Justice Scalia

SCOTUS has no jurisdiction; Congress already spoke.

But Your Honor, I really like the argument that the U.S. Treasury was injured.

Per the Federalist Papers, the Court cannot override Congress.

U.S. college students barely understand that the Constitution is the law of the land. Do you really want to confuse them further with pamphlets written by anonymous advocates and heretics? I’ll try not to belly laugh next time.

Relegating a jurisdictional requirement to “prudential” status is a wondrous device, enabling courts to ignore the requirement [of Article III standing] whenever they believe it “prudent” – which is to say, a good idea.

Good point, Your Honor, but see Flast v. Cohen, that “notorious” case you so despise a la my favorite Court – the Warren Court. And if a taxpayer can be injured, why can’t the U.S. Treasury that stands for millions of taxpayers?

“No one questions the power of the States to define marriage.”

Sustained. But the States can regulate the behavior and prohibit or provide for marriage. So the hair is evenly split.

Equal Protection or Due Process? Make up your minds already. The Court offers no single concrete reason for invalidating the statute.

Sustained because the Court did not invalidate the statute per se; it invalidated a provision of the statute.

DOMA wasn’t enacted based on the legality of same-sex marriages; [chronologically speaking] the States defied Congress; Congress didn’t defy the States.

Your Honor. Jaw-dropping.

This Court is undermining the democratic process.

With all due respect, the Court’s Opinion underscored hair-splitting.

“Some will rejoice in today’s decision, and some will despair in it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides… We owed both of them better.”

Your Honor, you just contradicted yourself by calling this case a “controversy.” Nevertheless, sustained. We do deserve better. We deserve an Opinion that takes no shame in completely striking down an unjust, discriminatory, law.

* * * * * * * * *

diamond ring_smUnited States v. Windsor may have taken the teeth out of DOMA’s Section 3 but it did not create a toothless tiger of DOMA. While striking Section 3 of DOMA was a gigantic step for LGBT couples who want to marry, who are married, and who reside in “friendly” states, those who are not in friendly states still face the same conundrum. Moreover, states that oppose same-sex marriage will use the template Scalia so handily provided in his dissent and the march for complete marriage equality will continue state by state.

With all reverence to the wisdom of our Framers, our courts, our government, our laws, and my profession, I contend that the Supreme Court of the United States is the last place the people of the United States can turn to when the system of checks and balances isn’t working. And when we have a patchwork of state laws still conflicting with federal law that harms so many people, the system has failed.

Let us not be fooled, the “ring” the Supremes “put on it” was 14 karat gold with cubic zirconium.

Respectfully submitted,
Maximillienne Elliott, Esquire

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