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DOMA SECTION 3 IS DEAD!

Jim Burroway

June 26th, 2013

In a 5-4 decision, the US Supreme Court struck down Section 3 of the Defense of Marriage Act, the part that bars the federal government from recognizing same-sex marriage, has been struck down as unconstitutional.

The opinion is here (PDF: 329KB/77 pages). Justice Kennedy, writing for the majority:

DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. Pp. 13–26.

(a) By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States. Congress has enacted discrete statutes to regulate the meaning of marriage in order to further federal policy, but DOMA, with a directive applicable to over 1,000 federal statues and the whole realm of federal regulations, has a far greater reach. Its operation is also directed to a class of persons that the laws of NewYork, and of 11 other States, have sought to protect. Assessing the validity of that intervention requires discussing the historical and traditional extent of state power and authority over marriage.

Subject to certain constitutional guarantees, see, e.g., Loving v. Virginia, 388 U. S. 1, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States,” Sosna v. Iowa, 419 U. S. 393, 404. The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States,” Ohio ex rel. Popovici v. Agler, 280 U. S. 379, 383–384. Marriage laws may vary from State to State, but they are consistent within each State.

DOMA rejects this long-established precept. The State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. But the Federal Government uses the state-defined class for the opposite purpose—to impose restrictions and disabilities. The question is whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment, since what New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect. New York’s actions were a proper exercise of its sovereign authority. They reflect both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.

(b) By seeking to injure the very class New York seeks to protect,DOMA violates basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413

U. S. 528, 534–535. DOMA cannot survive under these principles. Its unusual deviation from the tradition of recognizing and accepting state definitions of marriage operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of a class recognized and protected by state law. DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

DOMA’s history of enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. BLAG’s arguments are just as candid about the congressional purpose.DOMA’s operation in practice confirms this purpose. It frustrates New York’s objective of eliminating inequality by writing inequality into the entire United States Code.

DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. Pp. 20–26.

The justices recognize the broad reach of DOMA:

DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in person hood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others,the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages. [Emphasis mine]

Chief Justice John Roberts dissented with Justice Antonin Scalia both on the question of standing and on the merits of the case. In Roberts’s dissent:

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 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. Post, at 19–20 (dissenting opinion).

Scalia’s dissent, naturally, was much more pointed as to standing:

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 leg- islation. 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.

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?

Scalia describes the court’s decision to hear the case “jaw drawing.” But since the court decided to hear the case on its merits, Scalia addressed them as well:

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.

Scalia dismissed the animus behind DOMA:

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 “dis- parage,” ”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 questioned 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.

…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.

The Family “Research” Council will undoubtedly be quoting Scalia extensively in the days to come.

Alito’s dissent is similar to Scalia’s, if not quite as entertaining, but he does manage to parrot FRC and NOM:

The family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. Past changes in the understand-ing of marriage—for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage— have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time.

We can expect something similar to take place if same sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come.

 

Comments

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Jack
June 26th, 2013 | LINK

Is it just Section 3?

Reference to just “DOMA” suggests the whole law is struck down.

???

Ben In Oakland
June 26th, 2013 | LINK

I am both thrilled and immensely disappointed. I’m not a legal scholar by any means, but it appears to me that this was the weakest possible decision. This decision should have been 7-2, not 5-4. 14th Amendment and 10th Amendment considerations should also have been cited, not merely 5th.

On the other hand: YAHOOOOOOOOOOOOO!!!!

TomTallis
June 26th, 2013 | LINK

We’ve got a call in to our immigration paralegal. Soon we’ll be a bi-national couple no longer. We celebrated our 15th anniversary yesterday; this is a great anniversary present.

Ben In Oakland
June 26th, 2013 | LINK

I must add, having read Roberts’ dissent, I am especially disappointed in him.

“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.”

that is not only simply an outright lie, it ignored: 1) The very title of the act, and 2) nothing about gay marriage impacts in any way, shape, or form heterosexuals getting married.

Lord_Byron
June 26th, 2013 | LINK

Tony Perkins is becoming desperate. I am listening to his response right now on ABC news and he is basically saying that we can only use the courts to win and time is not on our side.

Marcus
June 26th, 2013 | LINK

@Ben in Oakland: Agreed. I know it could be worse, but I’m not too happy about the fact that even a “neutral” stance by the federal government is too radical for almost half of the court.

Those Scalia quotes are priceless, as is this from John Roberts: “Nor do the snippets of legislative history and the banal title of the Act [… show] that the Act’s principal purpose was to codify malice […] I would not tar the political branches with the brush of bigotry.”

Seriously, do these guys know what bigotry IS?

Richard Rush
June 26th, 2013 | LINK

Does this decision really only apply to Section 3? I’ve been skimming through it, and it repeatedly refers to DOMA, not Section 3. For example, on page 25, it reads:

This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.

Jim Burroway
June 26th, 2013 | LINK

Actually, the opinion refers to “§3″ repeatedly throughout. That is the only portion of the law under consideration here.

Lord_Byron
June 26th, 2013 | LINK

“And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. ”

Got it, so the SCOTUS has no authority to rule any law that has been democratically passed unconstitutional. Didn’t Scalia just put himself out of work then?

Priya Lynn
June 26th, 2013 | LINK

Scalia said “But the majority says that the supporters of this Act acted with malice—with the “purpose to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” to “impose inequality,” to “impose . . . a stigma,” to deny people “equal dignity,” to brand gay people as “unworthy,” and to “humiliat[e]” their children, ibid..”

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 todefend the Constitution of the United States is to condemn, demean, or humiliate other constitutions.

The gaping hole in Scalia’s “logic” is that the hypocritically named “Defense” of Marriage Act did nothing to aid or defend heterosexual marriages, its sole action was to attack same sex marriages. If the constitution of the united states was “defended” in the same way, nothing would be done to support it, the only action would be to invalidate all other constitutions. Scalia is in essence claiming its not an attack on same sex marriage to attack same sex marriage as long as you dishonestly call that action “defending heterosexual marriage”.

Rob
June 26th, 2013 | LINK

Ben In Oakland,

The 14th Amendment does not apply directly to the federal government. The 5th Amendment does. Anytime there is an equal protection case regarding the federal government, the Court will cite the 5th Amendment. It usually doesn’t really matter because they’re analyzed using the same standard.

Ben In Oakland
June 26th, 2013 | LINK

Rob, I reviewed both amendments, and you are correct. Thanks for the clarification.

Richard
June 26th, 2013 | LINK

Is this ruling able to be applied retrospectively?
“DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”
“The right to marry was first extended to same-sex couples by a United States jurisdiction on November 18, 2003, by a state Supreme Judicial Court ruling in Massachusetts”

therefore there has been 10 years of illegal Federal discrimination, which will have had a financial cost to legally married couples in numerous states.
Will the IRS now be required to refund the taxes & other charges paid by legally married couples since 2003?

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