. The cure for the evils of
democracy is more democracy!
H. L. Mencken, Notes on Democracy, 1926
One
of the foundational principles of the Madison Conservative is the need to offer
salient points in matters of public policy, to augment the discourse within the
body politic with a perspective of using the United States Constitution as the
source of answers to many of the issues. The recent Supreme Court decision
vacating the California
Prop 8 decision and accompanying matters of the Defense of Marriage Act led
many to point to bits and pieces of Justice Antonin Scalias’ dissent on the
courts opinion. It was troubling to hear only miniscule snippets from both
sides of the extreme political spectrum, but nowhere, save the Supreme Court
website, was there a complete copy of Scalias’ dissent. It is not in an easy to
read format, and attempting to copy and paste were met with frustration.
In
order to follow the self-described mandate of the Madison Conservative, the entirety
of Scalias opinion is presented here, in as best a transcription as was
possible.
It
is hefty reading, but shows the depths to which issues many use as bumper
sticker catch phrases are indeed much more involved than may appear.
We
applaud Justice Scalia for framing his arguments as he did. Whether one agrees
or disagrees, it is hard to argue the intellectual honesty and American spirit
included within his dissent.
And
so, in its entirety, is the dissent.
UNITED STATES, PETITIONER v.
EDITH SCHLAIN WINDSOR, in her capacity as executor of the ESTATE OF THEA CLARA
SPYER, et al.
on writ of certiorari to the united states
court of appeals for the second circuit
[June 26, 2013]
Justice Scalia, with whom Justice
Thomas joins, and with whom The Chief Justice joins as to Part I, dissenting.
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.
I
A
The
Court is eager—hungry—to tell everyone its view of the legal question at the
heart of this case. Standing in the way is an obstacle, a technicality of
little interest to anyone but the people of We the People, who created it as a
barrier against judges’ intrusion into their lives. They gave judges, in
Article III, only the “judicial Power,” a power to decide not abstract
questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and
the Government agree entirely on what should happen in this lawsuit. They agree
that the court below got it right; and they agreed in the court below that the
court below that one got it right as well. What, then, are we doing here?
The
answer lies at the heart of the jurisdictional portion of today’s opinion,
where a single sentence lays bare the majority’s vision of our role. The Court
says that we have the power to decide this case because if we did not, then our
“primary role in determining the constitutionality of a law” (at least one that
“has inflicted real injury on a plaintiff”) would “become only secondary to the
President’s.” Ante, at 12. But wait, the reader wonders—Windsor won below, and so cured her injury,
and the President was glad to see it. True, says the majority, but judicial
review must march on regardless, lest we “undermine the clear dictate of the
separation-of-powers principle that when an Act of Congress is alleged to
conflict with the Constitution, it is emphatically the province and duty of the
judicial department to say what the law is.” Ibid. (internal quotation marks
and brackets omitted).
That
is 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 every- where “primary” in its role.
This
image of the Court would have been unrecognizable to those who wrote and
ratified our national charter. They knew well the dangers of “primary” power,
and so created branches of government that would be “perfectly coordinate by
the terms of their common commission,” none of which branches could “pretend to
an exclusive or superior right of settling the boundaries between their
respective powers.” The Federalist, No. 49, p. 314 (C. Rossiter ed. 1961) (J.
Madison). The people did this to protect themselves. They did it to guard their
right to self-rule against the black-robed supremacy that today’s majority
finds so attractive. So it was that Madison
could confidently state, with no fear of contradiction, that there was nothing
of “greater intrinsic value” or “stamped with the authority of more enlightened
patrons of liberty” than a government of separate and coordinate powers. Id., No. 47, at 301.
For
this reason we are quite forbidden to say what the law is whenever (as today’s
opinion asserts) “ ‘an Act of Congress is alleged to conflict with the
Constitution.’ ” Ante, at 12. We can do so only when that allegation will
determine the outcome of a lawsuit, and is contradicted by the other party. The
“judicial Power” is not, as the majority believes, the power “ ‘to say what the
law is,’ ” ibid., giving the Supreme Court the “primary role in determining the
constitutionality of laws.” The majority must have in mind one of the foreign
constitutions that pronounces such primacy for its constitutional court and
allows that primacy to be exercised in contexts other than a lawsuit. See,
e.g., Basic Law for the Federal Republic of Germany, Art. 93. The judicial
power as Americans have understood it (and their English ancestors before them)
is the power to adjudicate, with conclusive effect, disputed government claims
(civil or criminal) against private persons, and disputed claims by private
persons against the government or other private persons. Sometimes (though not
always) the parties before the court disagree not with regard to the facts of
their case (or not only with regard to the facts) but with regard to the applicable
law—in which event (and only in which event) it becomes the “ ‘province and
duty of the judicial department to say what the law is.’ ” Ante, at 12.
In
other words, declaring the compatibility of state or federal laws with the
Constitution is not only not the “primary role” of this Court, it is not a
separate, free-standing role at all. We perform that role incidentally—by
accident, as it were—when that is necessary to resolve the dispute before us.
Then, and only then, does it become “ ‘the province and duty of the judicial
department to say what the law is.’ ” That is why, in 1793, we politely
declined the Washington
Administration’s request to “say what the law is” on a particular treaty matter
that was not the subject of a concrete legal controversy. 3 Correspondence and
Public Papers of John Jay 486–489 (H. Johnston ed. 1893). And that is why, as
our opinions have said, some questions of law will never be presented to this
Court, because there will never be anyone with standing to bring a lawsuit. See
Schlesinger v. Reservists Comm. to Stop the War, 418 U.
S. 208, 227 (1974) ; United
States v. Richardson, 418 U. S.
166, 179 (1974) . As Justice Brandeis put it, we cannot “pass upon the
constitutionality of legislation in a friendly, non-adversary, proceeding”;
absent a “ ‘real, earnest and vital controversy between individuals,’ ” we have
neither any work to do nor any power to do it. Ashwander v. TVA, 297 U. S. 288,
346 (1936) (concurring opinion) (quoting Chicago & Grand Trunk R. Co. v. Wellman,
143 U. S.
339, 345 (1892) ). Our authority begins and ends with the need to adjudge the
rights of an injured party who stands before us seeking redress. Lujan v.
Defenders of Wildlife, 504 U.
S. 555, 560 (1992) .
That
is completely absent here. Windsor’s
injury was cured by the judgment in her favor. And while, in ordinary
circumstances, the United
States is injured by a directive to pay a
tax refund, this suit is far from ordinary. Whatever injury the United States
has suffered will surely not be redressed by the action that it, as a litigant,
asks us to take. The final sentence of the Solicitor General’s brief on the
merits reads: “For the foregoing reasons, the judgment of the court of appeals
should be affirmed.” Brief for United
States (merits) 54 (emphasis added). That
will not cure the Government’s injury, but carve it into stone. One could spend
many fruitless afternoons ransacking our library for any other petitioner’s
brief seeking an affirmance of the judgment against it. 1 What the petitioner United
States asks us to do in the case before us is exactly what the respondent
Windsor asks us to do: not to provide relief from the judgment below but to say
that that judgment was correct. And the same was true in the Court of Appeals:
Neither party sought to undo the judgment for Windsor, and so that court should have
dismissed the appeal (just as we should dismiss) for lack of jurisdiction.
Since both parties agreed with the judgment of the District Court for the
Southern District of New York, the suit should have ended there. The further
proceedings have been a contrivance, having no object in mind except to elevate
a District Court judgment that has no precedential effect in other courts, to
one that has precedential effect throughout the Second Circuit, and then (in
this Court) precedential effect throughout the United States.
We
have never before agreed to speak—to “say what the law is”—where there is no
controversy before us. In the more than two centuries that this Court has
existed as an institution, we have never suggested that we have the power to
decide a question when every party agrees with both its nominal opponent and
the court below on that question’s answer. The United States reluctantly conceded
that at oral argument. See Tr. of Oral Arg. 19–20.
The
closest we have ever come to what the Court blesses today was our opinion in
INS v. Chadha, 462 U. S.
919 (1983) . But in that case, two parties to the litigation disagreed with the
position of the United
States and with the court below: the House
and Senate, which had intervened in the case. Because Chadha concerned the
validity of a mode of congressional action—the one-house legislative veto—the
House and Senate were threatened with destruction of what they claimed to be
one of their institutional powers. The Executive choosing not to defend that
power, 2 we permitted the House and Senate to intervene. Nothing like that is
present here.
To
be sure, the Court in Chadha said that statutory aggrieved-party status was
“not altered by the fact that the Executive may agree with the holding that the
statute in question is unconstitutional.” Id., at 930–931. But in a footnote to that
statement, the Court acknowledged Article III’s separate requirement of a
“justiciable case or controversy,” and stated that this requirement was
satisfied “because of the presence of the two Houses of Congress as adverse
parties.” Id.,
at 931, n. 6. Later in its opinion, the Chadha Court remarked that the United States’
announced intention to enforce the statute also sufficed to permit judicial
review, even absent congressional participation. Id., at 939. That remark is true, as a
description of the judicial review conducted in the Court of Appeals, where the
Houses of Congress had not intervened. (The case originated in the Court of
Appeals, since it sought review of agency action under 8 U. S. C. §1105a(a)
(1976 ed.).) There, absent a judgment setting aside the INS order, Chadha faced
deportation. This passage of our opinion seems to be addressing that initial
standing in the Court of Appeals, as indicated by its quotation from the lower
court’s opinion, 462 U. S.,
at 939–940. But if it was addressing standing to pursue the appeal, the remark
was both the purest dictum (as congressional intervention at that point made
the required adverseness “beyond doubt,” id., at 939), and quite incorrect.
When a private party has a judicial decree safely in hand to prevent his
injury, additional judicial action requires that a party injured by the decree
seek to undo it. In Chadha, the intervening House and Senate fulfilled that
requirement. Here no one does.
The
majority’s discussion of the requirements of Article III bears no resemblance
to our jurisprudence. It accuses the amicus (appointed to argue against our
jurisdiction) of “elid[ing] the distinction between . . . the jurisdictional
requirements of Article III and the prudential limits on its exercise.” Ante,
at 6. It then proceeds to call the requirement of adverseness a “prudential”
aspect of standing. Of standing. That is incomprehensible. A plaintiff (or
appellant) can have all the standing in the world—satisfying all three standing
requirements of Lujan that the majority so carefully quotes, ante, at 7—and yet
no Article III controversy may be before the court. Article III requires not
just a plaintiff (or appellant) who has standing to complain but an opposing
party who denies the validity of the complaint. It is not the amicus that has
done the eliding of distinctions, but the majority, calling the quite separate
Article III requirement of adverseness between the parties an element (which it
then pronounces a “prudential” element) of standing. The question here is not
whether, as the majority puts it, “the United
States retains a stake sufficient to support Article III
jurisdiction,” ibid. the question is whether there is any controversy (which
requires contradiction) between the United States and Ms. Windsor.
There is not.
I
find it wryly amusing that the majority seeks to dismiss the requirement of
party-adverseness as nothing more than a “prudential” aspect of the sole
Article III requirement of standing. (Relegating a jurisdictional requirement
to “prudential” status is a wondrous device, enabling courts to ignore the
requirement whenever they believe it “prudent”—which is to say, a good idea.)
Half a century ago, a Court similarly bent upon announcing its view regarding
the constitutionality of a federal statute achieved that goal by effecting a
remarkably similar but completely opposite distortion of the principles
limiting our jurisdiction. The Court’s notorious opinion in Flast v. Cohen, 392
U. S. 83–101 (1968), held that standing was merely an element (which it
pronounced to be a “prudential” element) of the sole Article III requirement of
adverseness. We have been living with the chaos created by that power-grabbing
decision ever since, see Hein v. Freedom From Religion Foundation, Inc., 551 U.
S. 587 (2007) , as we will have to live with the chaos created by this one.
The
authorities the majority cites fall miles short of supporting the
counterintuitive notion that an Article III “controversy” can exist without
disagreement between the parties. In Deposit Guaranty Nat. Bank v. Roper, 445 U. S.
326 (1980) , the District Court had entered judgment in the individual
plaintiff’s favor based on the defendant bank’s offer to pay the full amount
claimed. The plaintiff, however, sought to appeal the District Court’s denial
of class certification under Federal Rule of Civil Procedure 23. There was a
continuing dispute between the parties concerning the issue raised on appeal.
The same is true of the other case cited by the majority, Camreta v. Greene,
563 U. S.
___ (2011). There the District Court found that the defendant state officers
had violated the Fourth Amendment, but rendered judgment in their favor because
they were entitled to official immunity, application of the Fourth Amendment to
their conduct not having been clear at the time of violation. The officers
sought to appeal the holding of Fourth Amendment violation, which would circumscribe
their future conduct; the plaintiff continued to insist that a Fourth Amendment
violation had occurred. The “prudential” discretion to which both those cases
refer was the discretion to deny an appeal even when a live controversy
exists—not the discretion to grant one when it does not. The majority can cite
no case in which this Court entertained an appeal in which both parties urged
us to affirm the judgment below. And that is because the existence of a
controversy is not a “prudential” requirement that we have invented, but an
essential element of an Article III case or controversy. The majority’s notion
that a case between friendly parties can be entertained so long as “adversarial
presentation of the issues is assured by the participation of amici curiae
prepared to defend with vigor” the other side of the issue, ante, at 10,
effects a breathtaking revolution in our Article III jurisprudence.
It
may be argued that if what we say is true some Presidential determinations that
statutes are unconstitutional will not be subject to our review. That is as it
should be, when both the President and the plaintiff agree that the statute is
unconstitutional. Where the Executive is enforcing an unconstitutional law,
suit will of course lie; but if, in that suit, the Executive admits the
unconstitutionality of the law, the litigation should end in an order or a
consent decree enjoining enforcement. This suit saw the light of day only
because the President enforced the Act (and thus gave Windsor standing to sue) even though he
believed it unconstitutional. He could have equally chosen (more appropriately,
some would say) neither to enforce nor to defend the statute he believed to be
unconstitutional, see Presidential Authority to Decline to Execute Unconstitutional
Statutes, 18 Op. Off. Legal Counsel 199 (Nov. 2, 1994)—in which event Windsor
would not have been injured, the District Court could not have refereed this
friendly scrimmage, and the Executive’s determination of unconstitutionality
would have escaped this Court’s desire to blurt out its view of the law. The
matter would have been left, as so many matters ought to be left, to a tug of
war between the President and the Congress, which has innumerable means (up to
and including impeachment) of compelling the President to enforce the laws it
has written. Or the President could have evaded presentation of the
constitutional issue to this Court simply by declining to appeal the District
Court and Court of Appeals dispositions he agreed with. Be sure of this much:
If a President wants to insulate his judgment of unconstitutionality from our
review, he can. What the views urged in this dissent produce is not insulation
from judicial review but insulation from Executive contrivance.
The
majority brandishes the famous sentence from Marbury v. Madison, 1 Cranch 137,
177 (1803) that “[i]t is emphatically the province and duty of the judicial
department to say what the law is.” Ante, at 12 (internal quotation marks
omitted). But that sentence neither says nor implies that it is always the
province and duty of the Court to say what the law is—much less that its
responsibility in that regard is a “primary” one. The very next sentence of
Chief Justice Marshall’s opinion makes the crucial qualification that today’s
majority ignores: “Those who apply the rule to particular cases, must of
necessity expound and interpret that rule.” 1 Cranch, at 177 (emphasis added).
Only when a “particular case” is before us—that is, a controversy that it is
our business to resolve under Article III—do we have the province and duty to
pronounce the law. For the views of our early Court more precisely addressing
the question before us here, the ma- jority ought instead to have consulted the
opinion of Chief Justice Taney in Lord v. Veazie, 8 How. 251 (1850):
“The
objection in the case before us is . . . that the plaintiff and defendant have
the same interest, and that interest adverse and in conflict with the interest
of third persons, whose rights would be seriously affected if the question of
law was decided in the manner that both of the parties to this suit desire it
to be.
“A
judgment entered under such circumstances, and for such purposes, is a mere
form. The whole proceeding was in contempt of the court, and highly
reprehensible . . . . A judgment in form, thus procured, in the eye of the law
is no judgment of the court. It is a nullity, and no writ of error will lie
upon it. This writ is, therefore, dismissed.” Id., at 255–256.
There
is, in the words of Marbury, no “necessity [to] expound and interpret” the law
in this case; just a desire to place this Court at the center of the Nation’s
life. 1 Cranch, at 177.
B
A
few words in response to the theory of jurisdiction set forth in Justice
Alito’s dissent: Though less far reaching in its consequences than the
majority’s conversion of constitutionally required adverseness into a
discretionary element of standing, the theory of that dissent similarly
elevates the Court to the “primary” determiner of constitutional questions
involving the separation of powers, and, to boot, increases the power of the
most dangerous branch: the “legislative department,” which by its nature
“draw[s] all power into its impetuous vortex.” The Federalist, No. 48, at 309
(J. Madison). Heretofore in our national history, the President’s failure to
“take Care that the Laws be faithfully executed,” U. S. Const., Art. II, §3, could
only be brought before a judicial tribunal by someone whose concrete interests
were harmed by that alleged failure. Justice Alito would create a system in
which Congress can hale the Executive before the courts not only to vindicate
its own institutional powers to act, but to correct a perceived inadequacy in
the execution of its laws. 3 This would lay to rest Tocqueville’s praise of our
judicial system as one which “intimately bind[s] the case made for the law with
the case made for one man,” one in which legislation is “no longer exposed to
the daily aggression of the parties,” and in which “[t]he political question
that [the judge] must resolve is linked to the interest” of private litigants.
A. de Tocqueville, Democracy in America 97 (H. Mansfield D. Winthrop eds. 2000). That would be replaced
by a system in which Congress and the Executive can pop immediately into court,
in their institutional capacity, whenever the President refuses to implement a
statute he believes to be unconstitutional, and whenever he implements a law in
a manner that is not to Congress’s liking.
Justice
Alito’s notion of standing will likewise enormously shrink the area to which
“judicial censure, exercised by the courts on legislation, cannot extend,”
ibid. For example, a bare majority of both Houses could bring into court the
assertion that the Executive’s implementation of welfare programs is too
generous—a failure that no other litigant would have standing to complain
about. Moreover, as we indicated in Raines v. Byrd, 521 U. S. 811, 828 (1997) ,
if Congress can sue the Executive for the erroneous application of the law that
“injures” its power to legislate, surely the Executive can sue Congress for its
erroneous adoption of an unconstitutional law that “injures” the Executive’s
power to administer—or perhaps for its protracted failure to act on one of his
nominations. The opportunities for dragging the courts into disputes hitherto
left for political resolution are endless.
Justice
Alito’s dissent is correct that Raines did not formally decide this issue, but
its reasoning does. The opinion spends three pages discussing famous,
decades-long disputes between the President and Congress—regarding
congressional power to forbid the Presidential removal of executive officers,
regarding the legislative veto, regarding congressional appointment of
executive officers, and regarding the pocket veto—that would surely have been
promptly resolved by a Congress-vs.-the-President lawsuit if the impairment of
a branch’s powers alone conferred standing to commence litigation. But it does
not, and never has; the “enormous power that the judiciary would acquire” from
the ability to adjudicate such suits “would have made a mockery of [Hamilton’s]
quotation of Montesquieu to the effect that ‘of the three powers above
mentioned . . . the JUDICIARY is next to nothing.’ ” Barnes v. Kline, 759 F. 2d
21, 58 (CADC 1985) (Bork, J., dissenting) (quoting The Federalist No. 78 (A.
Hamilton)).
To
be sure, if Congress cannot invoke our authority in the way that Justice Alito
proposes, then its only recourse is to confront the President directly.
Unimaginable evil this is not. Our system is designed for confrontation. That
is what “[a]mbition . . . counteract[ing] ambition,” The Federalist, No. 51, at
322 (J. Madison), is all about. If majorities in both Houses of Congress care
enough about the matter, they have available innumerable ways to compel
executive action without a lawsuit—from refusing to confirm Presidential
appointees to the elimination of funding. (Nothing says “enforce the Act” quite
like “. . . or you will have money for little else.”) But the condition is
crucial; Congress must care enough to act against the President itself, not
merely enough to instruct its lawyers to ask us to do so. Placing the
Constitution’s entirely anticipated political arm wrestling into permanent
judicial receivership does not do the system a favor. And by the way, if the
President loses the lawsuit but does not faithfully implement the Court’s
decree, just as he did not faithfully implement Congress’s statute, what then?
Only Congress can bring him to heel by . . . what do you think? Yes: a direct
confrontation with the President.
II
For the reasons above, I think
that this Court has, and the Court of Appeals had, no power to decide this
suit. We should vacate the decision below and remand to the Court of Appeals
for the Second Circuit, with instructions to dismiss the appeal. Given that the
majority has volunteered its view of the merits, however, I proceed to discuss
that as well.
A
There
are many remarkable things about the majority’s merits holding. The first is
how rootless and shifting its justifications are. For example, the opinion
starts with seven full pages about the traditional power of States to define
domestic relations—initially fooling many readers, I am sure, into thinking
that this is a federalism opinion. But we are eventually told that “it is unnecessary
to decide whether this federal intrusion on state power is a violation of the
Constitution,” and that “[t]he State’s power in defining the marital relation
is of central relevance in this case quite apart from principles of federalism”
because “the State’s decision to give this class of persons the right to marry
conferred upon them a dignity and status of immense import.” Ante, at 18. But
no one questions the power of the States to define marriage (with the
concomitant conferral of dignity and status), so what is the point of devoting
seven pages to describing how long and well established that power is? Even
after the opinion has formally disclaimed reliance upon principles of
federalism, mentions of “the usual tradition of recognizing and accepting state
definitions of marriage” continue. See, e.g., ante, at 20. What to make of
this? The opinion never explains. My guess is that the majority, while
reluctant to suggest that defining the meaning of “marriage” in federal
statutes is unsupported by any of the Federal Government’s enumerated powers, 4
nonetheless needs some rhetorical basis to support its pretense that today’s
prohibition of laws excluding same-sex marriage is confined to the Federal
Government (leaving the second, state-law shoe to be dropped later, maybe next
Term). But I am only guessing.
Equally
perplexing are the opinion’s references to “the Constitution’s guarantee of
equality.” Ibid. Near the end of the opinion, we are told that although the
“equal protection guarantee of the Fourteenth Amendment makes [the] Fifth
Amendment [due process] right all the more specific and all the better
understood and preserved”—what can that mean?—“the Fifth Amendment itself
withdraws from Government the power to degrade or demean in the way this law does.”
Ante, at 25. The only possible interpretation of this statement is that the
Equal Protection Clause, even the Equal Protection Clause as incorporated in
the Due Process Clause, is not the basis for today’s holding. But the portion
of the majority opinion that explains why DOMA is unconstitutional (Part IV)
begins by citing Bolling v. Sharpe, 347 U. S.
497 (1954) , Department of Agriculture v. Moreno,
413 U. S. 528 (1973) , and
Romer v. Evans, 517 U. S.
620 (1996) —all of which are equal-protection cases. 5 And those three cases
are the only authorities that the Court cites in Part IV about the
Constitution’s meaning, except for its citation of Lawrence v. Texas, 539 U. S.
558 (2003) (not an equal-protection case) to support its passing assertion that
the Constitution protects the “moral and sexual choices” of same-sex couples,
ante, at 23.
Moreover,
if this is meant to be an equal-protection opinion, it is a confusing one. The
opinion does not resolve and indeed does not even mention what had been the central
question in this litigation: whether, under the Equal Protection Clause, laws
restricting marriage to a man and a woman are reviewed for more than mere
rationality. That is the issue that divided the parties and the court below,
compare Brief for Respondent Bipartisan Legal Advisory Group of U. S. House of
Representatives (merits) 24–28 (no), with Brief for Respondent Windsor (merits)
17–31 and Brief for United States (merits) 18–36 (yes); and compare 699 F. 3d
169, 180–185 (CA2 2012) (yes), with id., at 208–211 (Straub, J., dissenting in
part and concurring in part) (no). In accord with my previously expressed
skepticism about the Court’s “tiers of scrutiny” approach, I would review this
classification only for its rationality. See United
States v. Virginia, 518 U. S. 515–570 (1996) (Scalia, J.,
dissenting). As nearly as I can tell, the Court agrees with that; its opinion
does not apply strict scrutiny, and its central propositions are taken from
rational-basis cases like Moreno.
But the Court certainly does not apply anything that resembles that deferential
framework. See Heller v. Doe, 509 U. S. 312, 320 (1993) (a
classification “ ‘must be upheld . . . if there is any reason- ably conceivable
state of facts’ ” that could justify it).
The
majority opinion need not get into the strict-vs.-rational-basis scrutiny
question, and need not justify its holding under either, because it says that
DOMA is unconstitutional as “a deprivation of the liberty of the person
protected by the Fifth Amendment of the Constitution,” ante, at 25; that it
violates “basic due process” principles, ante, at 20; and that it inflicts an
“injury and indignity” of a kind that denies “an essential part of the liberty
protected by the Fifth Amendment,” ante, at 19. The majority never utters the
dread words “substantive due process,” perhaps sensing the disrepute into which
that doctrine has fallen, but that is what those statements mean. Yet the
opinion does not argue that same-sex marriage is “deeply rooted in this
Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702–721
(1997), a claim that would of course be quite absurd. So would the further
suggestion (also necessary, under our substantive-due-process precedents) that
a world in which DOMA exists is one bereft of “ ‘ordered liberty.’ ” Id., at 721 (quoting Palko v. Connecticut,
302 U. S.
319, 325 (1937) ).
Some
might conclude that this loaf could have used a while longer in the oven. But
that would be wrong; it is already overcooked. The most expert care in preparation
cannot redeem a bad recipe. The sum of all the Court’s nonspecific hand-waving
is that this law is invalid (maybe on equal-protection grounds, maybe on
substantive-due-process grounds, and perhaps with some amorphous federalism
component playing a role) because it is motivated by a “ ‘bare . . . desire to
harm’ ” couples in same-sex marriages. Ante, at 20. It is this proposition with
which I will therefore engage.
B
As
I have observed before, the Constitution does not forbid the government to
enforce traditional moral and sexual norms. See Lawrence
v. Texas, 539 U. S. 558, 599 (2003) (Scalia, J.,
dissenting). I will not swell the U. S. Reports with restatements of
that point. It is enough to say that the Constitution neither requires nor
forbids our society to approve of same-sex marriage, much as it neither
requires nor forbids us to approve of no-fault divorce, polygamy, or the
consumption of alcohol.
However,
even setting aside traditional moral disapproval of same-sex marriage (or
indeed same-sex sex), there are many perfectly valid—indeed, downright
boring—justifying rationales for this legislation. Their existence ought to be
the end of this case. For they give the lie to the Court’s conclusion that only
those with hateful hearts could have voted “aye” on this Act. And more
importantly, they serve to make the contents of the legislators’ hearts quite
irrelevant: “It is a familiar principle of constitutional law that this Court
will not strike down an otherwise constitutional statute on the basis of an
alleged illicit legislative motive.” United
States v. O’Brien, 391 U. S. 367, 383 (1968) . Or at least
it was a familiar principle. By holding to the contrary, the majority has
declared open season on any law that (in the opinion of the law’s opponents and
any panel of like-minded federal judges) can be characterized as mean-spirited.
The
majority concludes that the only motive for this Act was the “bare . . . desire
to harm a politically unpopular group.” Ante, at 20. Bear in mind that the
object of this condemnation is not the legislature of some once-Confederate
Southern state (familiar objects of the Court’s scorn, see, e.g., Edwards v.
Aguillard, 482 U. S. 578
(1987) ), but our respected coordinate branches, the Congress and Presidency of
the United States.
Laying such a charge against them should require the most extraordinary
evidence, and I would have thought that every attempt would be made to indulge
a more anodyne explanation for the statute. The majority does the
opposite—affirmatively concealing from the reader the arguments that exist in
justification. It makes only a passing mention of the “arguments put forward”
by the Act’s defenders, and does not even trouble to paraphrase or describe
them. See ante, at 21. I imagine that this is because it is harder to maintain
the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch
mob when one first describes their views as they see them.
To
choose just one of these defenders’ arguments, DOMA avoids difficult
choice-of-law issues that will now arise absent a uniform federal definition of
marriage. See, e.g., Baude, Beyond DOMA: Choice of State Law in Fed- eral
Statutes, 64 Stan. L. Rev. 1371 (2012). Imagine a pair of women who marry in Albany and then move to Alabama, which does not “recognize as valid
any marriage of parties of the same sex.” Ala. Code §30–1–19(e) (2011). When the
couple files their next federal tax return, may it be a joint one? Which
State’s law controls, for federal-law purposes: their State of celebration (which
recognizes the marriage) or their State of domicile (which does not)? (Does the
answer depend on whether they were just visiting in Albany?) Are these questions to be answered
as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law
rules? If so, which State’s? And what about States where the status of an
out-of-state same-sex marriage is an unsettled question under local law? See
Godfrey v. Spano, 13 N. Y. 3d 358, 920 N. E. 2d 328 (2009). DOMA avoided all of
this uncertainty by speci- fying which marriages would be recognized for
federal purposes. That is a classic purpose for a definitional provision.
Further,
DOMA preserves the intended effects of prior legislation against
then-unforeseen changes in circumstance. When Congress provided (for example)
that a special estate-tax exemption would exist for spouses, this exemption
reached only opposite-sex spouses—those being the only sort that were
recognized in any State at the time of DOMA’s passage. When it became clear
that changes in state law might one day alter that balance, DOMA’s definitional
section was enacted to ensure that state-level experimentation did not
automatically alter the basic operation of federal law, unless and until
Congress made the further judgment to do so on its own. That is not animus—just
stabilizing prudence. Congress has hardly demonstrated itself unwilling to make
such further, revising judgments upon due deliberation. See, e.g., Don’t Ask,
Don’t Tell Repeal Act of 2010, 124Stat. 3515.
The
Court mentions none of this. Instead, it accuses the Congress that enacted this
law and the President who signed it of something much worse than, for example,
having acted in excess of enumerated federal powers—or even having drawn
distinctions that prove to be irrational. Those legal errors may be made in
good faith, errors though they are. But the majority says that the supporters
of this Act acted with malice—with the “purpose” (ante, at 25) “to disparage
and to injure” same-sex couples. It says that the motivation for DOMA was to
“demean,” ibid.; to “impose inequality,” ante, at 22; to “impose . . . a
stigma,” ante, at 21; to deny people “equal dignity,” ibid.; to brand gay
people as “unworthy,” ante, at 23; and to “humiliat[e]” their children, ibid.
(emphasis added).
I
am sure these accusations are quite untrue. To be sure (as the majority points
out), the legislation is called the Defense of Marriage Act. But to defend
traditional marriage is not to condemn, demean, or humiliate those who would
prefer other arrangements, any more than to defend the Constitution of the United States
is to condemn, demean, or humiliate other constitutions. To hurl such
accusations so casually demeans this institution. In the majority’s judgment,
any resistance to its holding is beyond the pale of reasoned disagreement. To
question its high-handed invalidation of a presumptively valid statute is to
act (the majority is sure) with the purpose to “disparage,” ”injure,”
“degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow
citizens, who are homosexual. All that, simply for supporting an Act that did
no more than codify an aspect of marriage that had been unquestioned in our
society for most of its existence—indeed, had been unquestioned in virtually
all societies for virtually all of human history. It is one thing for a society
to elect change; it is another for a court of law to impose change by adjudging
those who oppose it hostes humani generis, enemies of the human race.
*
* *
The
penultimate sentence of the majority’s opinion is a naked declaration that
“[t]his opinion and its holding are confined” to those couples “joined in
same-sex marriages made lawful by the State.” Ante, at 26, 25. I have heard
such “bald, unreasoned disclaimer[s]” before. Lawrence, 539 U. S., at 604.
When the Court declared a constitutional right to homosexual sodomy, we were
assured that the case had nothing, nothing at all to do with “whether the
government must give formal recognition to any relationship that homosexual
persons seek to enter.” Id.,
at 578. Now we are told that DOMA is invalid because it “demeans the couple,
whose moral and sexual choices the Constitution protects,” ante, at 23—with an
accompanying citation of Lawrence.
It takes real cheek for today’s majority to assure us, as it is going out the
door, that a constitutional requirement to give formal recognition to same-sex
marriage is not at issue here—when what has preceded that assurance is a
lecture on how superior the majority’s moral judgment in favor of same-sex
marriage is to the Congress’s hateful moral judgment against it. I promise you
this: The only thing that will “confine” the Court’s holding is its sense of
what it can get away with.
I
do not mean to suggest disagreement with The Chief Justice’s view, ante, p. 2–4
(dissenting opinion), that lower federal courts and state courts can
distinguish today’s case when the issue before them is state denial of marital
status to same-sex couples—or even that this Court could theoretically do so.
Lord, an opinion with such scatter-shot rationales as this one (federalism
noises among them) can be distinguished in many ways. And deserves to be. State
and lower federal courts should take the Court at its word and distinguish
away.
In
my opinion, however, the view that this Court will take of state prohibition of
same-sex marriage is indicated beyond mistaking by today’s opinion. As I have
said, the real rationale of today’s opinion, whatever disappearing trail of its
legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “
‘bare . . . desire to harm’ ” couples in same-sex marriages. Supra, at 18. How
easy it is, indeed how inevitable, to reach the same conclusion with regard to
state laws denying same-sex couples marital status. Consider how easy
(inevitable) it is to make the following substitutions in a passage from
today’s opinion ante, at 22:
“DOMA’s
This state law’s principal effect is to identify a subset of state-sanctioned
marriages constitutionally protected sexual relationships, see Lawrence, and
make them unequal. The principal purpose is to impose inequality, not for other
reasons like governmental efficiency. Responsibilities, as well as rights,
enhance the dignity and integrity of the person. And DOMA this state law
contrives to deprive some couples married under the laws of their State
enjoying constitutionally protected sexual relationships, but not other
couples, of both rights and responsibilities.”
Or
try this passage, from ante, at 22–23:
“[DOMA]
This state law tells those couples, and all the world, that their otherwise
valid marriages relationships are unworthy of federal state recognition. This
places same-sex couples in an unstable position of being in a second-tier
marriage relationship. The differentiation demeans the couple, whose moral and
sexual choices the Constitution protects, see Lawrence, . . . .”
Or
this, from ante, at 23—which does not even require alteration, except as to the
invented number:
“And
it humiliates tens of thousands of children now being raised by same-sex
couples. The law in question makes it even more difficult for the children to
understand the integrity and closeness of their own family and its concord with
other families in their community and in their daily lives.”
Similarly
transposable passages—deliberately transposable, I think—abound. In sum, that
Court which finds it so horrific that Congress irrationally and hatefully
robbed same-sex couples of the “personhood and dignity” which state
legislatures conferred upon them, will of a certitude be similarly appalled by
state legislatures’ irrational and hateful failure to acknowledge that
“personhood and dignity” in the first place. Ante, at 26. As far as this Court
is concerned, no one should be fooled; it is just a matter of listening and
waiting for the other shoe.
By
formally declaring anyone opposed to same-sex marriage an enemy of human
decency, the majority arms well every challenger to a state law restricting
marriage to its traditional definition. Henceforth those challengers will lead
with this Court’s declaration that there is “no legitimate purpose” served by
such a law, and will claim that the traditional definition has “the purpose and
effect to disparage and to injure” the “personhood and dignity” of same-sex
couples, see ante, at 25, 26. The majority’s limiting assurance will be
meaningless in the face of language like that, as the majority well knows. That
is why the language is there. The result will be a judicial distortion of our
society’s debate over marriage—a debate that can seem in need of our clumsy
“help” only to a member of this institution.
As
to that debate: Few public controversies touch an institution so central to the
lives of so many, and few inspire such attendant passion by good people on all
sides. Few public controversies will ever demonstrate so vividly the beauty of
what our Framers gave us, a gift the Court pawns today to buy its stolen moment
in the spotlight: a system of government that permits us to rule ourselves.
Since DOMA’s passage, citizens on all sides of the question have seen victories
and they have seen defeats. There have been plebiscites, legislation,
persuasion, and loud voices—in other words, democracy. Victories in one place
for some, see North Carolina
Const., Amdt. 1 (providing that “[m]arriage between one man and one woman is
the only domestic legal union that shall be valid or recognized in this State”)
(approved by a popular vote, 61% to 39% on May 8, 2012), 6 are offset by
victories in other places for others, see Maryland Question 6 (establishing
“that Maryland’s civil marriage laws allow gay and lesbian couples to obtain a
civil marriage license”) (approved by a popular vote, 52% to 48%, on November
6, 2012). 7 Even in a single State, the question has come out differently on
different occasions. Compare Maine Question 1 (permitting “the State of Maine
to issue marriage licenses to same-sex couples”) (approved by a popular vote,
53% to 47%, on November 6, 2012) 8 with Maine Question 1 (rejecting “the new
law that lets same-sex couples marry”) (approved by a popular vote, 53% to 47%,
on November 3, 2009). 9
In
the majority’s telling, this story is black-and-white: Hate your neighbor or
come along with us. The truth is more complicated. It is hard to admit that
one’s political opponents are not monsters, especially in a struggle like this
one, and the challenge in the end proves more than today’s Court can handle.
Too bad. A reminder that disagreement over something so fundamental as marriage
can still be politically legitimate would have been a fit task for what in
earlier times was called the judicial temperament. We might have covered
ourselves with honor today, by promising all sides of this debate that it was
theirs to settle and that we would respect their resolution. We might have let
the People decide.
But
that the majority will not do. Some will rejoice in today’s decision, and some
will despair at it; that is the nature of a controversy that matters so much to
so many. But the Court has cheated both sides, robbing the winners of an honest
victory, and the losers of the peace that comes from a fair defeat. We owed
both of them better. I dissent.
Notes
1
For an even more advanced scavenger hunt, one might search the annals of
Anglo-American law for another “Motion to Dismiss” like the one the United
States filed in District Court: It argued that the court should agree “with
Plaintiff and the United States” and “not dismiss” the complaint. (Emphasis
mine.) Then, having gotten exactly what it asked for, the United States promptly appealed.
2
There the Justice Department’s refusal to defend the legislation was in accord
with its longstanding (and entirely reasonable) practice of declining to defend
legislation that in its view infringes upon Presidential powers. There is no
justification for the Justice Department’s abandoning the law in the present
case. The majority opinion makes a point of scolding the President for his
“failure to defend the constitutionality of an Act of Congress based on a
constitutional theory not yet established in judicial decisions,” ante, at 12.
But the rebuke is tongue-in-cheek, for the majority gladly gives the President
what he wants. Contrary to all precedent, it decides this case (and even
decides it the way the President wishes) despite his abandonment of the defense
and the consequent absence of a case or controversy.
3
Justice Alito attempts to limit his argument by claiming that Congress is
injured (and can therefore appeal) when its statute is held unconstitutional
without Presidential defense, but is not injured when its statute is held
unconstitutional despite Presidential defense. I do not understand that line.
The injury to Congress is the same whether the President has defended the
statute or not. And if the injury is threatened, why should Congress not be
able to participate in the suit from the beginning, just as the President can?
And if having a statute declared unconstitutional (and therefore inoperative)
by a court is an injury, why is it not an injury when a statute is declared
unconstitutional by the President and rendered inoperative by his consequent
failure to enforce it? Or when the President simply declines to enforce it
without opining on its constitutionality? If it is the inoperativeness that
constitutes the injury—the “impairment of [the legislative] function,” as
Justice Alito puts it, post, at 4—it should make no difference which of the
other two branches inflicts it, and whether the Constitution is the pretext. A
principled and predictable system of jurisprudence cannot rest upon a shifting
concept of injury, designed to support standing when we would like it. If this
Court agreed with Justice Alito’s distinction, its opinion in Raines v. Byrd,
521 U. S. 811 (1997) , which involved an original suit by Members of Congress
challenging an assertedly unconstitutional law, would have been written quite
differently; and Justice Alito’s distinguishing of that case on grounds quite
irrelevant to his theory of standing would have been unnecessary.
4
Such a suggestion would be impossible, given the Federal Government’s long
history of making pronouncements regarding marriage—for example, conditioning Utah’s entry into the Union
upon its prohibition of polygamy. See Act of July 16, 1894, ch. 138, §3,
28Stat. 108 (“The constitution [of Utah]”
must provide “perfect toleration of religious sentiment,” “Provided, That
polygamous or plural marriages are forever prohibited”).
5
Since the Equal Protection Clause technically applies only against the States,
see U. S. Const., Amdt. 14, Bolling and Moreno,
dealing with federal action, relied upon “the equal protection component of the
Due Process Clause of the Fifth Amendment,” Moreno,
413 U. S.,
at 533.
6
North Carolina State Board of Elections, Official
Results: Primary Election of May 8, 2012, Constitutional Amendment.
7
Maryland State Board of Elections, Official 2012 Presidential General Election
Results for All State Questions, Question 06.
8
Maine Bureau
of Elections, Nov. 3, 2009, Referendum Tabulation (Question 1).
9
Maine Bureau
of Elections, Nov. 6, 2012, Referendum Election Tabulations (Question 1).
Dissent
SUPREME COURT OF THE UNITED STATES
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