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Supreme Court Strikes Down Defense of Marriage Act (nytimes.com)
139 points by flexterra 1402 days ago | hide | past | web | 77 comments | favorite



This discusses two rulings. DOMA and Proposition 8. I like the DOMA decision. I like the specific result of the Proposition 8 ruling, but do not like the way they got there.

The issue with proposition 8 is that California lost, and then chose not to appeal. Lawyers for the group that passed proposition 8 then stepped in and took the case. Their argument basically was that if they were not allowed to do this, then any proposition passed by Californians that the government did not like the government could unpass by posting a lackluster defense and then not appealing it.

The 9th circuit did not know whether they should grant standing. They remanded it to the California Supreme Court to decide that. The California Supreme Court said that under California law they did have standing. The 9th heard it. The Supreme Court has now disagreed.

But I agree with that argument from the supporters of proposition 8. California gives voters the power to pass proposition that the state does not like. The state has now been handed a legal tool which undermines that in federal court. (I do not understand precedent well enough to know whether state courts will look to the Supreme Court or the California Supreme Court on this.)


> The 9th circuit did not know whether they should grant standing. They remanded it to the California Supreme Court to decide that.

That's neither procedurally nor factually correct; they certified a question to the California Supreme Court about the authority of petitioners under State law to defend the proposition in court; this was not a remand, and although the Ninth Circuit based its finding of standing on the result, the question to the California Supreme Court was not directly on standing (which is a federal question, not a state law question, and thus wouldn't have been an appropriate question for certification to the state court.)

> The Supreme Court has now disagreed.

The Supreme Court, to be clear, disagreed with the Ninth Circuit's conclusion on standing, not the California Supreme Court's answer on the question of state law authority. In fact, they based their disagreement in part on the California Supreme Court answer, and on how that answer clearly indicated that the state law authority did not have the requisite elements of an agency relationship, which would be necessary for the petitioners to have the standing on the basis that they were representatives of the State interest rather than on the basis of particularized harms they themselves faced as the result of an adverse decision.

> California gives voters the power to pass proposition that the state does not like.

It gives the voters -- through the reserved legislative powers state held by the electorate -- the power to pass laws (including Constitutional amendments) that the elected representatives of the state don't like.

It also gives the voters the power to voters to elect representatives -- and to remove them if they don't like their actions.

> I do not understand precedent well enough to know whether state courts will look to the Supreme Court or the California Supreme Court on this.)

State courts -- and federal courts -- will look to the state Supreme Court on the state law question, and would look to the US Supreme Court on the federal law question (except that the question of Article III standing is, unlike many other federal law questions, almost never relevant to a state court except perhaps as persuasive authority on the application of similar state standing rules when there is no controlling state precedent available.)


Thank you for the corrections and clarifications.

I'm a non-lawyer going off of my memory of what was said in the media, and clearly got some important details wrong.


Your proposition 8 concerns are very intriguing on a practical level, I would suggest the following:

> California lost, by posting a lackluster defense.

This is a case of Constitutional law review, where legal precedent must be presented to the Court (in other words there will be little if any dispute of material facts that will be decided by a fact finder, simply a ruling on law), it is not as if California could or the other side could withhold legal precedent from the Court (even if it is adverse to their position), in fact the lawyers could be sanctioned for knowingly withholding case law that is on point. Further, the Court performs its own research, review, and analysis of the existing case law. In my opinion there are far to many safeguards for these types of abuses or throwing of a case.


There is a world of difference between "put up an acceptable defense" and "defended to the limit of their ability".

Opponents of the proposition pick a district court with a judge whose bias is known. The state puts up a defense, loses, and then does not appeal. There are, now, no safeguards blocking this sequence. Nobody can be sanctioned for it. And nobody aside from the disinterested state has standing to complain.

The protection of the court is useless if you cannot get your day in court.


> Opponents of the proposition pick a district court with a judge whose bias is known. The state puts up a defense, loses, and then does not appeal. There are, now, no safeguards blocking this sequence. Nobody can be sanctioned for it.

Incorrect. California voters, if the issue is important to them, can remove the offending officials. And they don't even have to wait until the next regular election for the particular officers targetted, given California's recall provisions. (And, given that California directly elects executive officers like the Attorney-General separately, rather than them being appointees, it can do so in a reasonably fine-grained manner.)

And, the people that have run statewide proposition campaigns are, by demonstrated experience, fairly uniquely qualified to apply that sanction should it be necessary.


That is indirect, and is consistently ineffective.

For example, consider hypothetical state propositions limiting when elected officials can solicit donations, or providing for specific penalties to elected officials should they fail to do certain things (eg pass a budget on time). There are many such propositions that could be popular with voters, and would certainly be unpopular with any elected official.

For that class of proposition, the ability to vote in different elected officials does not actually give the public an effective tool to get the state to support the proposition.


> That is indirect, and is consistently ineffective.

And that is moving the goalposts (particularly as to the "indirect" portion), and unsupported (as to the "consistently ineffective".)

The rather special case you assert as an example, whatever merits it might have, clearly doesn't show that it is "consistently" anything.


>Opponents of the proposition pick a district court with a judge whose bias is known.

First you can not "pick" a District Court Judge, cases are assigned to District Court Judges.

>The state puts up a defense, loses, and then does not appeal. There are, now, no safeguards blocking this sequence.

The first ruling is the safeguard...Judges can not just rule according to their gut or "bias" they have to follow precedent - they can not ignore case law nor can the attorneys.

Besides, if you think the State is acting so unethically, in basically throwing the case (which again is not really possible in a Federal Court Civil Rights Case), then they will simply take the appeal to blok a private party from doing so, and just lose that case. Then what? Appeal to the SCOTUS? Well as it stands the SCOTUS does not have to take any case, in fact the majority of cases they appealed to them they do not to take, approximately 90% of every case they hear is some death penalty appeal. SCOTUS has a history of passing on very important issues, and could have passed on DOMA if they wanted.

>The protection of the court is useless if you cannot get your day in court.

They had there day in Court and lost, they decided not to appeal, no one can force a party to appeal. It is not for private parties to assume they could have done better than the State and interject themselves in the State's place and appeal. That opens a floodgate of real issues. Who has standing when multiple parties want to take the case? What if one of those parties is actually adverse to the position?


You may not pick the judge, but you can pick the district. Also not every case filed will go all of the way through to a decision, so you can file multiple cases then actually litigate the one that wound up in front of the judge that you want. (There are safeguards against that. They are imperfect...)

Furthermore while in theory judges have to follow precedent and case law, in practice there are lots of cases where well-meaning and dedicated judges, presented with the same facts, precedent, and case law, will come to opposite conclusion. Were it otherwise, the Supreme Court would never have dissenting opinions.

Finally, courts do have the right to request that the arguments that they wish to hear about particular points of law be made in front of them. For example in proposition 8, the justices required that the standing argument be made, even though neither side wanted to advance it. In the Affordable Healthcare Act this went further. An attorney, Robert Long, wound up having to be appointed specifically to make the case to the Supreme Court for a point that neither side wished to argue. That point being that the law was a tax, and therefore under the Anti-Injunction Act no lawsuit could be brought about it until after someone had been injured by actually paying it.

That last point matters in this case. The state actively did not want to defend this case in front of the district court. The judge wanted it defended. That is how a different set of attorneys got involved in the first place.


IANAL, but I believe that to have 'standing' you must show that you have been affected or harmed by the law in question.

The petitioners were claiming that they should have standing without demonstrating that they had been affected or harmed by the law in question. To rule in favor of the petitioners would have been to throw out the entire principle of 'standing'.

In a hypothetical future case, where the petitioners did have evidence of harm, they would not be prohibited by today's ruling from making a successful petition despite the State's lack of interest in defending the law.

At least that is how it seems to my amateur and cursory review of today's decision.


On the other hand, I can see why the federal courts don't see that as being their problem. If California wants to have a crazy, dysfunctional, mutually self-vetoing electoral system of both direct and representative democracy at the same time, then that's a matter for California.


Yeah, from the perspective of the U.S.'s federal structure it's difficult to conclude there's standing for federal courts here. When federal courts strike down a state law as inconsistent with federal power (either violating the Constitution, or superseded under the Supremacy Clause by federal statute), it's a dispute between the state and the federal governments, and the state can appeal. But if the state says, "on second thought, you're right" and declines to appeal the matter, there's no longer an active dispute between the two levels of government.

If it's to be remedied at any level, I'd say it would have to be handled by California. For example, the California Constitution could include a provision that officially appoints the backer of an initiative as a state officer empowered to defend the initiative against challenges.


Yeah, from the perspective of the U.S.'s federal structure it's difficult to conclude there's standing for federal courts here.

Given that the 9th court concluded that there was standing, and 4 out of 9 on the Supreme Court did likewise, I believe that you are significantly overestimating the difficulty of coming to that conclusion.

It is true that the court as a whole decided against standing existing. But several of the most important judges in the country heard the facts, knew the law, and concluded that standing did exist.


I like the prop 8 ruling for the fact that it bars interest groups from fighting constitutionality rulings in the future. This basically eliminates the possibility of 'Citizen's-united-ization' of the court system. Otherwise interest groups could dump hoards of cash into fighting court cases that they would otherwise not be a party to. While I would have liked to see a stronger ruling on Prop 8, I'm even happier that the court provided an avenue for keeping money out of the last government institution that has a fighting chance.


It is constantly surprising to me how nearly-deterministic these votes are: each respective quartet of the court votes along what's seen as party lines, with Kennedy being the swing vote. Is it because the court really is that partisan, or because the technicalities and details in each case fall sharply along judicial philosophical lines? With life terms, it's not as if the justices need to vote a certain way to keep office.


> It is constantly surprising to me how nearly-deterministic these votes are, each respective quartet of the court votes along what's seen as party lines, with Kennedy being the swing vote

I think there is probably a bit of confirmation bias and media distortion here; plenty of Supreme Court decisions, even on high profile topics, aren't 5-4 or are 5-4 but don't break "conservative 4" + "liberal 4" + Kennedy (e.g., the decision uphold the Affordable Care Act [1] was 5-4, with Roberts plus the four liberals in the majority, and the four remaining conservatives, including Kennedy, in the minority.) But for the months the case was before the Supreme Court, the media was harping on how it was bound to be 5-4 with Kennedy as the swing vote, so what do you think sticks more in people's minds -- the actual result that was highlighted on the day of the decision and then dropped, or the "everyone knows" that was a focus of attention for months?

And, on the decision letting stand the District Court decision [2] striking down Prop. 8 in California based on the Prop. 8 supporters lack of standing to appeal the decision, also announced today, the 5-4 decision had Roberts, Scalia, Ginsberg, Breyer, and Kagan in the majority with Kennedy, Thomas, Alito, and Sotomayor in the minority.

[1] NFIB v. Sebelius, http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf [2] Hollingworth v. Perry, http://www.supremecourt.gov/opinions/12pdf/12-144_8ok0.pdf


There's a lot of speculation that Roberts' vote swung the way it did because he was concerned about public perception of SCOTUS in general, and the Roberts Court legacy in particular.

It's apparently a 'well-known fact' at this point that Roberts switched his vote at the last minute on the ACA ruling.


Scalia had a good comment on the Supreme Court's alleged partisanship. He said: justices are selected for their distinct judicial philosophies. Is it a surprise when they vote accordingly?

Also, some cases are more political than others. Most cases are not 5:4 votes. This is one of those political cases: where you come out depends on whether you view homosexuality as a protected characteristic where people's rights should trump the law as passed by the elected branches, or whether you don't view it as a protected characteristic in which case the default of deference to Congress wins out.

What's interesting are the political cases where the votes don't follow the politics. Look at the vote on Hamdi v Rumsfeld. That was a very political issue at the time, but the votes came out not along party lines at all.

It's also interesting to look at what happens when the parties change their positions relative to the justices they appointed. E.g. Stevens was appointed by a Republican and came out liberal. Thomas was appointed by a very moderate Republican but has come out very conservative. Roberts and Alito were both appointed by GWB, but the former has come out very moderate and the latter quite conservative.


> Scalia had a good comment on the Supreme Court's alleged partisanship. He said: justices are selected for their distinct judicial philosophies. Is it a surprise when they vote accordingly?

IIRC, if you assess the salience of particular political issues at the time a Justice is appointed, and then look at how they vote on those issues throughout their career, they tend to be pretty consistent with the appointing administrations views on issues that were of high salience when the justice was appointed to the Court, and less consistent the lower the salience of hte issue was at the time the justices are appointed.

This tends to support the idea that justices are much more appointed for the views on high-profile issues than any kind of broad "judicial philosophy".


I agree with your characterization but I don't think that qualifies for the label "partisanship." Partisans would go with the political flow of their party.


The Prop 8 standing decision was Roberts, Scalia, Breyer, Ginsburg, and Kagan.


Right, and the Prop 8 decision was procedural rather than ideological. They essentially ruled (for the first and only time) that a private party (here, the Prop 8 proponents) is not allowed to defend the constitutionality of a law--the State is required to make that argument.

Since the state declined to defend the law at lower courts, SCOTUS sent it back to that court with directions to dismiss it.

From Amy Howe at the SCOTUS Blog:

"Here's a Plain English take on Hollingsworth v. Perry, the challenge to the constitutionality of California's Proposition 8, which bans same-sex marriage: After the two same-sex couples filed their challenge to Proposition 8 in federal court in California, the California government officials who would normally have defended the law in court, declined to do so. So the proponents of Proposition 8 stepped in to defend the law, and the California Supreme Court (in response to a request by the lower court) ruled that they could do so under state law. But today the Supreme Court held that the proponents do not have the legal right to defend the law in court. As a result, it held, the decision by the U.S. Court of Appeals for the Ninth Circuit, the intermediate appellate court, has no legal force, and it sent the case back to that court with instructions for it to dismiss the case."

And since it was just posted, here is the same type of explanation for the DOMA ruling:

"Here's a Plain English take on United States v. Windsor, the DOMA case: The federal Defense of Marriage Act defines "marriage," for purposes of over a thousand federal laws and programs, as a union between a man and a woman only. Today the Court ruled, by a vote of five to four, in an opinion by Justice Kennedy, that the law is unconstitutional. The Court explained that the states have long had the responsibility of regulating and defining marriage, and some states have opted to allow same-sex couples to marry to give them the protection and dignity associated with marriage. By denying recognition to same-sex couples who are legally married, federal law discriminates against them to express disapproval of state-sanctioned same-sex marriage. This decision means that same-sex couples who are legally married must now be treated the same under federal law as married opposite-sex couples."


> Right, and the Prop 8 decision was procedural rather than ideological.

It was justified on procedural grounds rather than on the merits, but to interpret procedurally-based decisions as "not ideological" and cases decided on the merits as "ideological" is unjustified.

Why would ideology be any less influential in a closely-contested vote on whether a high-profile case procedurally warranted decision; if you assume justices are outcome-seeking based on ideology, then there is no reason that procedural justifications for a preferred outcome would be treated any differently than any other justification.


But the procedural precedent will stick. This isn't the first time a voter initiative was declared unconstitutional because the state government wanted it declared unconstitutional, and it won't be the last.


It was justified on procedural grounds rather than on the merits, but to interpret procedurally-based decisions as "not ideological" and cases decided on the merits as "ideological" is unjustified.

I disagree because justices habitually take the point of view that the principle established is more important than the result achieved. Therefore a variety of ideologies can result in a procedural decision that rules for a side that the justice may or may not personally agree with.

Take this case. Everyone knows that, no matter what happened in the court, California is going to have gay marriage soon. Popular support is running in that direction and it is just a question of time. So whether that happens now or in 3 years is not that important. Thus a justice who does not like gay marriage would not lose much overturning proposition 8.

But what do they gain? The result of their decision is that states which allow voters to pass propositions that the state government does not like, now have an approved legal trick to undo those propositions. Namely try to get sued, then fail to defend the proposition adequately. The court overturns it, and the proposition dies.

If you're a justice who thinks that voter propositions tend to be bad, providing that precedent could be more important to you than the outcome. But since that's a fairly esoteric legal issue, there is little correlation between your feelings about that, and how conservative or liberal you are.

Thus I would not be surprised if one or two of the justices who decided on that procedural ground actually are personally against gay marriage.

But, you say, why wouldn't they avoid that in a high profile case? The answer is because cases become high profile based on what the justices can do. After they act, they can make them unimportant. In this case they could have declared gay marriage legal throughout the entire country on constitutional grounds. (The case was brought in hope of that exact outcome.) Instead a technicality was established, and California got the result that would have happened anyways inside of 5 years.

That's the difference between the front page story on the NY Times and being buried as a couple of sentences in an article about a more important decision that was handed down at the same time.


You don't actually seem to be disagreeing with me, in that you don't seem to be making an argument that procedural decisions are less ideological than merits decisions. You just seem to pointing to an alternative ideological goal to the immediate policy goal, and pointing out that it is possible for ideology to be focussed on something other than what the media headlines of a case are about (which is a point I don't disagree with, though for simplicity in the context of the post I was responding to isn't one I wanted to raise.)


My disagreement was with the following part of what you said earlier:

...if you assume justices are outcome-seeking based on ideology, then there is no reason that procedural justifications for a preferred outcome would be treated any differently than any other justification.

My point is that the connection between the specific outcome of the case, and the outcomes that the justices care about, tends to be weaker for procedural decisions than merits decisions. Therefore we should treat procedural decisions differently from merits decisions. In particular, we should be more cautious about assuming that the underlying ideology matches the obvious headline.


(IANAL) Because a procedural justification doesn't set the right kind of precedent. It says that the means to get to the court weren't right, but you can try again. A decision based on the merits of the case sets much more powerful precedent by saying that this case and any case that follows with similar merits must be decided by lower courts according to the SCOTUS ruling.


> Because a procedural justification doesn't set the right kind of precedent.

Right, so its a weaker outcome. But if we assume that justices have ideological concerns with policy outcome, there is no reason that the selection to make a procedural decision would be any less a subject to those concerns than the selection to make a merits decision. In fact, the fact that it is a weaker outcome (on the subject addressed by the substance of the case) than a merits decision with similar effect in the immediate case would in some cases be the motivation for pursuing it for an outcome-oriented justice.


Kennedy isn't always the swing vote. Sometimes Roberts is the swing vote.


Roberts has generally been considered the swing vote in cases where he needs to sort of fall-on-his-sword to preserve the non-partisan appearance of the court. The Obamacare ruling was one such case.


> Roberts has generally been considered the swing vote in cases where he needs to sort of fall-on-his-sword to preserve the non-partisan appearance of the court.

I think this is a fairly strained interpretation to try to defend the idea that the court is iron-locked into the "liberal 4" + "conservative 4" + Kennedy divide (casting a different divide as Roberts trying to create an illusion about the court), and it falls down when you have high profile cases like the today's Hollingsworth v. Perry [1] where the majority is made up of Roberts, Scalia, Ginsberg, Breyer, and Kagan.

[1] http://www.supremecourt.gov/opinions/12pdf/12-144_8ok0.pdf


> Roberts has generally been considered the swing vote in cases where he needs to sort of fall-on-his-sword to preserve the non-partisan appearance of the court.

Why? So he doesn't have a problem getting "re-elected?" I'm not sure why you think he is worried about the appearance of the court in that way.


The Court's power lies in its perceived integrity and being above the fray of election-driven politics. If it appears partisan, it risks being marginalized.

Remember, the Court gave itself the powers it has in Marbury vs. Madison, and has at times had folks like Jackson go "let them enforce it". If public opinion turns against the Court, politicians can as well.


The cases that are most reported on in media are the highly political/partisan ones, and there the votes tend to fall along partisan lines. But most of the cases decided by the court are more technical, and don't show such partisan voting.

http://www.scotusblog.com/wp-content/uploads/2013/06/vote_sp...


Here is the text of the ruling. Supreme Court rulings always start out with a very readable syllabus which provides an overview of the ruling, recommended read:

http://www.supremecourt.gov/opinions/12pdf/12-307_g2bh.pdf


The opinions themselves also tend to be quite readable. I try to at least skim most decisions as they come out, to have an idea of what the Supreme Court is doing and why (at least in its own words) it's doing so.

One plus of reading both sides is that, with admitted exceptions, the reasoning of the side I disagree with is rarely as stupid as news reports make it sound. A lot of cases that get to the Supreme Court really do have plausible arguments on each side (the really obvious cases get decided lower down).


Curious how this affects startups (along with overturning Prop 8), given the large population of gay people in tech. Presumably since you still need to get married in a SSM-supporting state, those states continue to win out. But federal benefits for immigration and incidental travel to non-SSM states would apply?

The biggest tech centers are now all in SSM-supporting states; TX, VA, CO, IL, and NC seem like the most important holdouts.

However, they only struck down the federal part, not the requirement that states recognize each other, so there's still a strong incentive to stay in an SSM-ok state even after marriage in an SSM state.


We'll have same-sex marriage in Illinois by next year (we have civil unions now).

Texas has a state constitutional amendment forbidding same-sex marriage. Virginia has a constitutional amendment banning both same-sex marriage and civil unions.

The Illinois constitution, sanely, is silent on the issue; every year we get closer to passing a same-sex marriage law; it's a foregone conclusion.


Re: Texas, the Texas constitution can be amended by a simple majority in a referendum, so the status of the SSM ban there is roughly the same as it was in California under Prop 8 (i.e. it can be overturned by 50% + 1 vote).

In general it's nearly useless as a constitution, in the sense of a stable document setting forth some general principles. It's been amended 474 times! So it's more like a giant grab-bag of legislation. That's usually bad, but in this case good (if you support SSM), since it's not set in stone.

The bigger issue isn't the structure of it being in the constitution, but the fact that supporters of SSM can't currently get within striking distance of 50% support in the state.


Virginia will probably be the last state to change. They deny any kind of protection for any kind of sexuality, identity, lifestyle or relationship other than a straight biologically-male man and a straight biologically-female woman getting married. If you want equal rights you end up moving to DC or Maryland. They're getting closer to transpeople getting protected status after a spate of individuals beaten nearly to death in public.


Well at least their history is consistent. They were also the state that most strongly resisted making interracial marriage legal. (To those who would say that several states had such laws on the books at the time, Virginia was more actively enforcing it than most. That is why it was Virginia that got sued for putting an interracial couple in jail. By, and I can't make this up, a loving couple actually named Loving.)


This seems really weird, given that Virginia was extremely important back during the revolution.


...what does the revolution have to do with interracial marriage legislation?


For one, I'm pleased - it will hopefully mean it's much easier for me to move to the states with my (male) partner, who's a citizen. In particular, it means I don't have to fret about finding a sponsor and opens up the option to work with a startup or other smaller company.

I can't imagine it'll be anything but a good thing for these companies, ultimately.


McAfee which was headquartered out of Plano, TX recognized domestic partnerships at least as far back as 5 years ago. Domestic partnership covers opposite-sex relationships, so it was a nice little benefit for everyone in committed relationships.


I assume that the exact same reasoning will eventually be used to overturn state-level laws. There's nothing in the majority's decision that persuasively argues that their reasoning should only apply at the federal level.


> "large population of gay people in tech"

Any citations to back this up? How did you come to this conclusion?



Indirectly: the court held that ProtectMarriage.com, as a private group intervening in the case, didn't have standing to appeal a ruling striking down a state law, even if it's one that had been adopted through an initiative they had proposed.

The sequence of events was: a federal court struck down a California law (passed via Proposition 8), and California, rather than appealing the decision, said "ok" and accepted the ruling. That leaves no remaining live controversy between the State and the federal court system, so nothing for an appeals court to hear (says today's decision).

The decision was 5-4 but not strictly on ideological lines: 2 conservatives and 3 liberals in the majority, 3 conservatives and 1 liberal dissenting.


> The decision was 5-4 but not strictly on ideological lines: 2 conservatives and 3 liberals in the majority, 3 conservatives and 1 liberal dissenting.

The assumption that the ideology of members of the court is unidimensional is not justified. "Not strictly according to the popularly perceived ideological factions of the court" is probably more supportable than "not strictly on ideological lines".


Unfortunately, the Supreme Court did not strike down DOMA. Section 2 of the Act, which lets states refuse to recognize same-sex marriages established by other states, remains intact.


Were they even able to do that, since it wasn't part of the case in front of them?


No, that's a good point. SCOTUS evaluated only Section 3 of DOMA. They did not "strike down" the entire Act, as most reporters are suggesting.


It seems reasonable that that part would be struck down later, when some suit is brought over it, or the Equal Rights Amendment finally passes.


Does this mean Glenn Greenwald can move back to the US now?


He's explicitly said he can't live with his partner due to DOMA, so I would expect as much - assuming they live in a state recognizing SSM rights.


I suspect he has a larger obstacle right now. Heh.


Independent of whether this is a good decision, I thought that the Supreme Court's mandate was to decide whether a law violates the Constitution and little more. Doesn't this sort of judicial activism weaken the separation of powers, or is there a legitimate argument to be made that this law violated a constitutional right of gay couples? If there is, it doesn't seem that the court quotes it.

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others.”


You need a basic understanding of Constitutional law to understand the decision/opinion. (Note: this is not intended to be an insult by any means, EP is a very complicated subtopic within Constitutional law, which is a complicated area of the law on its own)

Essentially, when a law targets a certain group then Equal Protection is triggered, this requires the Courts to apply a standard/scrutiny. (See: http://en.wikipedia.org/wiki/Equal_Protection_Clause) Specifically, read up the section on "Tiered scrutiny". In this instance DOMA would require a "legitimate purpose" to target this group (like mid-level scrutiny), it is not that the SCOTUS could not find a legitimate purpose to over turn the law (as I believe you interpret), but that the law was overturned because the legislature did not have a legitimate purpose in creating the law (other than disparage and injure the targeted group, according to the majority opinion).

>Doesn't this sort of judicial activism weaken the separation of powers

The idea of Judicial Activism is a red herring, when any court rules against ones own personal bias/interest. For example, Brown v. Board and Brown v. Board II are typically called judicial activism, but generally only by those who prefer Jim Crow laws. Moreover, this is precisely what the Court was meant to do, review a law and determine whether the legislature enacted a law that violates the Constitution, if this is "judicial activism" then what is SCOTUS for and how would they be a check on the legislature?


From the ruling:

"The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law. This raises a most serious question under the Constitution’s Fifth Amendment.

...

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality “must at the very least mean that a bare con-gressional 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 (1973).

...

The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.

...

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."


I thought that the Supreme Court's mandate was to decide whether a law violates the Constitution and little more.

This is... I don't even know where to begin on how fundamentally wrong this is.

The Supreme Court is established by Article III of the Constitution. It's the end of the line for any legal question that falls under the jurisdiction outlined by Article III, which consists of far, far, far more than "whether a law violates the Constitution and little more".

As for this opinion, the Court explains very clearly the Constitutional issue: DOMA violates the Fifth Amendment. DOMA also has federalism issues, and so in theory a Tenth Amendment problem, but that's not actually necessary in order to strike it down.


Ok, thanks for the clarification.


How does the fifth apply? Nobody involved were changed with a crime, nor did they strictly speaking lose any rights, as they could at any time marry a person of the opposite gender (and hetero-sexual people can't marry anybody of the same sex either).

I would have assumed that the 14th amendment would have applied.


The Fifth Amendment includes a guarantee that "No person shall... be deprived of life, liberty, or property, without due process of law".

"Due process of law" is the key here; the government cannot simply say "well, we don't like this person, so we're just going to decree arbitrarily that he doesn't get the same rights as other people".

What it actually means will vary depending on what the government is trying to do; in a criminal case, for example, due process includes all the procedures and safeguards to make sure you get a fair trial before you can be thrown in prison.

Of course, DOMA is more or less literally the federal government saying "we don't like these people, so we're just going to decree arbitrarily that they don't get the same rights as other people".

The Fifth Amendment is the relevant one here because the first batch of amendments -- the Bill of Rights -- are traditionally interpreted as only restraining what the federal government can do; they do not, it is generally believed, constrain the states. The Fourteenth Amendment added equal-protection and due-process requirements for the states, so when a state does something that treats people unequally the Fourteenth Amendment is what the resulting lawsuit usually turns on.


From the opinion (http://www.supremecourt.gov/opinions/12pdf/12-307_g2bh.pdf)

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


It also appears that a large part of their ruling bases on the argument that DOMA is unconstitutional, because some states have gone to the effort of providing legal protections.

In other words, DOMA was quite possibly constitutional right up until any state passed laws explicitly granting protections and rights to same-sex marriages. At that point however, it was in direct conflict with state laws and in an area where state laws prevail.


Ok, that seems reasonable then.


The Constitution doesn't GRANT the Feds any power to decide who is married or not. They have to respect whatever status the STATES designate. So to unilaterally deny one type of marriage versus another that is sanctioned by a state is illegal.

What's really funny is that all these arguments were used buy the "Bible Belt" to KEEP slavery, owning people, on the books for just about as long as we have been discussing gay rights. The Feds could not end slaves as property without an amendment. Various states banned slavery, but the Feds ruled that slaves Owned in one state had to be respected as property rights during travel or if they escaped, even in states where slavery was illegal.

Of course many states treated interracial marriages the same way as gay marriage, well into the 1900's.. Until they were forcibly stopped during the Civil Rights movement. They all know the law and precedent, they don't like it so they want to ignore it.


> Independent of whether this is a good decision, I thought that the Supreme Court's mandate was to decide whether a law violates the Constitution and little more.

No, its to resolve all cases and controversies in law and equity arising under the Constitution and laws of the United States (or, at least, that's the role of the federal judiciary; the Supreme Court's role is procedurally limited to a certain subset of those cases and controversies that are either in its original jurisdiction or properly before it on appeal.) See, generally, Article III of the US Constitution.

Also, here, all the Supreme Court did is find the statute in violation of the Constitution, so even under your narrow view of its role its action seems perfectly within what it is assigned to do.


"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 personhood 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."

Direct violation of the Fifth Amendment.


I'm elated. There might be some hope for this country, after all.


This is a really good thing. Not because I want everybody to marry their same gender [1] (each has the right to choose whom adult to love)], but rather because if they can get protection it means that we as a nation are moving in the right direction. It means we are becoming less judgmental and prejudiced for the sake of it. At least I hope so.

[1] Personally though I think two woman having sex is kinky and quite erotic. Two guys, not so much but to each their own. I'm male by the way.


I agree with your premise but why the footnote? It adds absolutely nothing to the conversation.


The footnote also is disparaging of gay men, since it implies they are not nice.


Darn! Foiled again by not keeping my mouth shut. Ho well, time to create a new account.




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