Whether you agree with the outcome or not, The Supreme Court created history today with its ruling on DOMA and Prop8. While the outcome feels clear i.e. that the Supreme Court found the federal definition of marriage as unconstitutional, how they did it, what arguments they used, is a considerably knottier question. I hope to be able to clarify some of the issues, arguments, and logic in this post. (Here’s the opinions of the courts on DOMA) (And for a more extensive background, check out previous blog posts, here, and here.)
In a 5-4 decision, the majority struck down DOMA as unconstitutional because it discriminates against a specific group of people for conceivably no good reason. The problem with this, as we’ve mentioned in previous posts, is that the case before the court entails the question if the court has the right to judge on this case in the first place (Unnecessarily convoluted, I know...) If you recall, this case in not a normal case because there seems to be no aggrieved party here. Edith Windsor has already won her case in lower appellate court, and the President declared DOMA unconstitutional. Consequently, it looks like both the plaintiff and the defendant want the same ruling i.e. that DOMA is unconstitutional so how could this have made it the supreme court?
For Scalia, that’s exactly the main problem with this ruling: the case should have never made it to the Supreme courts. After he dismantles the majority’s explanation for why it is indeed a real court case of opposing parties, Scalia goes on to explain what he sees as the essential difference between his opinion and the majority. Scalia paints the disagreement as a fundamental argument as to the nature and scope of the Supreme Court’s power. For Scalia, the court has a considerably narrower scope that what the majority likes to claim. Scalia contends that the main and fundamental purpose of the court is not to decide on the constitutionality of any law, but rather to decide real and concrete and actionable cases. Judicial review, he claims, is only a byproduct of the need to judge real cases with immediate consequences, while he believes that the majority see Judicial review, i.e. the need and ability for the court to decide on the whether a law is constitutional, as the main and foundational role of the court.
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...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.
He therefore sees the court as woefully overstepping its boundaries in this case. Kennedy doesn’t paint the argument in these terms. While he himself does discuss the role of the court, he also believes that this case is a real and actionable case in which there is claim and controversy upon. He doesn’t see this as just deciding on an abstract issue or just choosing to impose the court’s will on a public debate. Scalia responds that this line of argumentation is a rationalization so that Kennedy could decide on the larger issue, and that on it’s own, the case shouldn’t have made it to the Supreme Court in the first place. (It’s important to realize that Scalia, so far, has yet to say anything about the actual legality of same-sex marriage. He is making a purely legal point about the court and its responsibilities.) It should be noted that Kennedy, as much as he does try to make it a regular case, needs to do jump through hoops to do so, and ends up saying that though it’s not a normal case, because of the importance and negative impact of DOMA, the court should decide on this case, which, ironically is exactly what Scalia disagrees with.
Scalia proceeds to make many substantive points in proving that this case does not fall under the jurisdiction of the court, whereas Kennedy spends most of his opinion showing how DOMA is an inherently discriminatory law. On this front, perhaps because Scalia spends considerably more time on the actual history and arguments, he sounds more intelligent and correct given the premises and history he marshals. The majority opinion does indeed seem to create a legal stretch and has a lack of precedence for deciding that there is a controversy in this case between the two parties, even though both the Executive Branch and plaintiff agree on the unconstitutionality of the law.
As is most often true in his arguments, Scalia is less compelling in his positive statements which try to defend DOMA as anything else besides mean-spirited, than in his criticism. His critiques work much better than his vision, not for his lack of intelligence, but for his naivete. Here is probably the most salient example. Scalia tries to argue that DOMA’s motivations and enactment was not inherently discriminatory because it served purposes other than its actual discrimination, which leads him into this sort of twisted logic:
“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 con demn, demean, or humiliate other constitutions.”
This is like saying pro-life doesn’t necessarily disagree with the pro-choice, but rather they stake out different choices. Overall Scalia’s argument for the constitutionality of DOMA reads a bit thin, as he tries to explain the validity and importance of that specific law, but he makes numerous interesting and often larger points. Essentially, which connects back to his first point, Scalia sees the judicial system as trying to take away the rights of the people to actually make this decision for themselves.
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.
He goes on to opine upon the dangerous rhetoric of the majority that paint anyone who wants only hetereosexual marriages as evil:
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.
Looked at in the context of Scalia’s other opinions and decisions, it’s a bit hard to take this 100% genuinely as he often seems to not care at all about other people's opinions. However, taken alone, it is a powerful statement and call for a different sort of political conversation and understand of the other side. Even if Scalia is coming down well wide of the moral path of history, he does so in reinforcing values most of us would accept - the freedom and autonomy to make our own decisions, the divestment of power from huge institutions, and a political dialogue of mutual respect and empathy.
However, it’s pretty impossible to deny all of Kennedy’s points about the inherent discrimination written into DOMA. (I focused on Scalia both because he is more explicit, and just a better writer which facilitates analysis. Moreover, Kennedy is considerably more straightforward in his positive argument.) In this, Kennedy shine’s as a writer and a moral crusader, considerably more so than his often clunky, repetitive and almost mysterious legal arguments regarding the issue of standing and controversy. Here, Kennedy states without an equivocations:
The avowed purpose and practical effect of the law here in question 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. The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute.
Kennedy has many versions of this basic argument, but then, in his most powerful statement of the piece, drops this great moment of moral clarity:
The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify. 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.
I hope this helped in terms of understanding some of the basic arguments on the ground.
Thanks for reading,