As the Supreme Court appears on the verge of a historic (non)decision on LGBT rights, I thought it would be interesting to explore some seemingly odd details of the case. Part of this post seeks to explore why is this case is so convoluted. Why doesn’t the court just pass judgment on the constitutionality of anti-gay marriage laws? Is this not the essential purpose of the Supreme Court, and if the court somehow finds a way to not pass any decision, does that not show the cowardice of this court? The more you read about the case the more you get the sense that the court bogs itself down in tangential questions of legalese that have nothing to do with the imperative essential question: how can you legally discriminate between hetero and homosexual marriages?
Let’s take a step back first to look at the facts of the case. In 1996, President Clinton, along with a majority of both the House and Senate quickly passed DOMA (Defense of Marriage Act) into law. (Yes, despite all the excuses, an embarrassing cast of politicians rushed this bill into law, including some of our favorite politicians but that’s a different topic.) Right before that, Hawaii became the first state to legalize homosexual marriage, and people were worried that other states would then be forced to recognize the marriage status of same sex marriages from Hawaii. Consequently, they drafted the DOMA bill which posits two essential clauses:
Section 2. Powers reserved to the states
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Section 3. Definition of marriage
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
The first clause posits that no state must recognize another state’s same-sex marriages. Consequently, if you did choose to get married in Hawaii you cannot move to a state that doesn’t recognize same sex marriages and expect recognition of your status. The third clause posited something considerably more ambitious. It stated that for all federal purposes, marriage would only be recognized as that between a man and a woman. Accordingly, even in a state like Hawaii, if a same sex couple married they would not be entitled to what amounts to over 1000 federal rights, exemptions, and benefits that heterosexual spouses are entitled to. People took umbrage both at the concept of the law and its manifestations. Many took offense at the limited definition of marriage, and even more took offense at the discriminatory practice of depriving a couple of the same rights simply based on their sexual orientation.
Now is where things start to get tricky and complicated. After 40 years in a relationship, Edith Windsor and Thea Spyer married in Canada, though they lived in New York. Thea died in 2009 and Edith inherited her money but was forced to pay federal inheritance tax because the government would not acknowledge their same-sex marriage as legal. Windsor consequently had to pay over 300,000 dollars in inheritance tax, of which she then sought recourse for that money in court. In New York District court, she appealed her case and actually won. The court found clause 3 unconstitutional under the equal protection clause of the 5th Amendment. Fine, great, good, right? Case over, you would think.
Well, not really, because when a state court rules a federal law unconstitutional the president and Congress tend to get involved, which complicates the matter. In the middle of the Windsor case, Obama, through Attorney General Holder released a curious statement that agreed that the third clause of DOMA is indeed unconstitutional and therefore said that it would not defend the law in courts, which is normally part of the job of the Justice department. (Here is the actual statement, which indeed is a fascinating read.)
However, it did say that in deference to the president and congress who created the law, Obama would continue to enforce the law until the court or congress told him otherwise. (This seems a bit strange and counterintuitive and that’s part of the complexity...) At the same time, the House created BLAG, a great name which stands for Bipartisan Legal Advisory Group, which essentially takes up the role of the Attorney General and appointed itself to defend the constitutionality of DOMA where the president would not. (How could the House just appoint itself into powers not normally in it’s jurisdiction? Good question, and that’s exactly what the Supreme Court wants to know...)
None of this changes Windsor’s victory in the district court, but it explains why the Windsor case moved on past that victory. The Department of Justice, in effort to help BLAG, filed an appeal to a federal court despite the fact that the DOJ approved of the initial ruling on the unconstitutionality of the law. Why did they do this? It’s not explicit, but likely so as to push the case to a higher court to decide the issue. This is a bit sneaky for numerous reasons and smacks of the DOJ trying to have its cake and eat it too. Despite the fact that the DOJ essentially won in the initial ruling, it wanted a higher status ruling so it pushed the case up to Federal Court. BLAG wasn’t too happy with this strange situation and tried to show that the DOJ can’t do this because they received no injury in this case i.e. the intuitive claim that this is what the DOJ wanted all along, so they can’t then appeal the case as if they lost. (We will get back to this...) Windsor, seeing the mishmash here, asked for the case to be brought before the Supreme Court, bypassing the lower federal appellate court, which the Supreme Court rarely does. Windsor cited her old age, but it’s hard to imagine that is the true consideration.
The Supreme Court decided to accept the case, but the case still went to federal appellate court and was upheld, thereby becoming the first federal court to declare clause 3 of DOMA unconstitutional. The DOJ then, in addition to Windsor’s request, petitioned the Supreme Court to hear the case, and this is where we stand. The Supreme court will now decide on three questions.
1. Is Clause 3 indeed unconstitutional under the equal protection clause of the 5th Amendment?
But before that, it needs to determine two other legal questions:
2. Does the fact that the president and the DOJ agree with the unconstitutionality of the law nullify them from being injured and therefore deprives them of the right to take the case to the Supreme Court?
3. Does the BLAG having any standing as a party in the case? It’s a similar but opposite side to question #2 here. The DOJ and the president, despite approving of the court ruling want’s to have its cake and eat too, by getting the Supreme Court to decide the case. BLAG which disapproves of the court’s decision want to defend the constitutionality of the law, but it remains unclear what standing this unprecedented BLAG group in law.
If it doesn’t believe that the DOJ or the President has standing, i.e. the right to bring the case to the Supreme Court, then the court cannot rule on the case, thereby obviating question #1. Windsor can’t bring the case to the Supreme Court because she is not seeking a recourse for injury i.e. she already won. It’s hard to see that the DOJ is truly seeking recourse because they want the law overturned, so the case would have no legs to stand on. What makes this case somewhat unprecedented is that there appears to be no injured party here. Windsor won all of her lower cases, and the President agrees with the unconstitutionality of the case, and the BLAG, at first glance is not a real party. So what to do, and why does this feel unnecessarily complicated?
Here is where the nature of Supreme Court comes into play, and here is where people begin to call the court cowards, or followers, and this seems to be a prevalent sentiment, but predicated on an apparent misunderstanding of the Supreme Court. All of this we will explore in the next post.
Thanks for reading.
Joe
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