legal analysismarriage equality

Unraveling the Windsor Knot

By July 10, 2013No Comments

Last week’s lengthy post examined from a broad perspective the United States v. Windsor case as a whole regarding what it did and did not do for same-sex marriage in the U.S. This week’s post is the first in a series of closer examinations on the specific issues and case law involved in this “landmark” Opinion. Though, the phrase “earth-shattering” may be more appropriate.

In this first more narrow perspective, we’ll start with the Court’s question on whether it should have heard the case at all, particularly the issue of Article III jurisdiction.

Article III of the U.S. Constitution mandates that courts can only hear “cases” or “controversies” and case law adds a few other requirements. So let’s consider how the question of Article III jurisdiction came into play and how it was resolved.

Controversies may seem readily apparent simply because one party is on one side of the “v,” for “versus,” and another party is on the other side, e.g., United States Versus Windsor. Obviously, the U.S. and Windsor disagreed.

But did they?

Those who say no genuine controversy existed based their argument on the fact that the Department of Justice refused to defend DOMA’s Section 3 because the President considered Section 3 unconstitutional.

Can the President do that?

Yes, the President can and the United States Supreme Court agreed with the Constitutional scholar who is also the President of the United States of America: Section 3 of DOMA is unconstitutional.

BUT, the sticky wicket in this case was that the Executive typically takes this type of position when the situation is adversarial, i.e., when a lower court disagrees. In Windsor, the lower court agreed. So just how was there was a “controversy”? Well, the Executive may have refused to defend Section 3, but it stated that it would continue to enforce it. A la, we have controversy…maybe…

Windsor07The Supreme Court used the case, Hein v. Freedom From Religion Foundation, as its starting point. In Hein, taxpayers sued the government for using money in faith-based programs initiated by former President Bush. The Court determined that the taxpayers lacked standing and thus couldn’t sue and reversed the appellate court’s ruling. A fundamental requirement for Article III controversies is standing, which is met when “a plaintiff [alleges] personal injury” that can be reasonably liked back to the defendant’s illegal action or actions and the relief sought by the plaintiff can probably be provided.

Here, there was no doubt that Edie suffered injury – more than $360,000 worth – and the U.S. wasn’t going to enforce the IRS’s refusal to pay the refund based on DOMA’s Section 3. So, though the lower court may have ordered the IRS to pay, congressional law told the IRS not to refund the payment.

The Court probably could have stopped here, because it could have remanded the case back down to the lower court with the admonition, with which Justice Scalia would have agreed, that Congress already spoke. But the Court ventured on, using INS v. Chadha to find controversy in the case past the issue of remand. In Chadha, a person who overstayed their visa was ordered by the INS (now known as USCIS) to leave the U.S. That person appealed to the Attorney General of the U.S., who granted the relief. However, Congress had the authority to veto the U.S. Attorney General and did so.

So, like Windsor, Chadha was a case where the Executive sided with one plaintiff and another government body – this time the House – disagreed. The Court in Chadha ruled that a controversy existed despite the agreement because there was “concrete adverseness” about the issue and there was adequate Article III standing before Congress vetoed.

Now, let’s look at Windsor again. The lower appellate court and the plaintiff agreed in Windsor agreed. There was – and still is – an ugly, discriminatory congressional statute affecting “the entire U.S. Code.”  So Congress had spoken. These facts are a tad different from Chadha… So where’s the controversy? Stay tuned…

Unravelling the Windsor Knot: Part 1 | Part 2

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