Balkinization  

Wednesday, June 26, 2013

A brief comment on Justice Kennedy's opinion in Windsor

Sandy Levinson



No doubt it was irresistible for Anthony Kennedy, the senior justice in the majority, to give himself Windsor, given his earlier opinions in Romer and Lawrence.  One consequence, of course, is that he had to keep the support of his four distinctly more liberal colleagues.  No doubt this contributed to the intellectual awkwardness of his opinion.  "Opinions of the Court" often have the characteristic of a camel (i.e., a horse designed by a committee).

Already there is some of the same kind of nit-picking about the doctrinal problems with Windsor as there most certainly were with Romer.  I.e., Kennedy wants to avoid a straight-forward equality argument that would inevitably mean that state prohibitions of same sex marriage are unconstitutional (or, at the very least, that Section 2 is just as invalid as Section 3 inasmuch there can be no constitutionally legitimate reason for Texas, say, to refuse to recognize the validity of a marriage entered into in New York by people who then move to the Lone Star State).  At the same time he no doubt realized that he couldn’t get a single additional vote if he predicated the opinion on a “reserved powers of the state to define marriage” argument, though he certainly included some blather about traditional state sovereignty and marriage.  So we get the combo that leaves many people who take legal doctrine overly seriously confused (though I presume we all predict that some time in the future  the Court will go after then now-outlier states that are sticking to heterosexual marriage as the exclusive norm).

But what if he had given the opinion to one of the moderate four?  Surely, she (or Breyer) would have emphasized equality and downplayed the federalism argument  (assuming it was even mentioned it at all).  So would we have had a 4-4-1 outcome, with Kennedy playing Powell’s role in Bakke, providing the crucial 5th vote on a theory rejected by all the rest of his colleagues?  This is, of course, basically what happened in Parents Involved.  So the (altogether serious) question is whether we are better off with the “Opinion of the Court,” however intellectually problematic in some ways, than with an undoubtedly more intellectually satisfying and coherent opinion written by any of the other four members of the majority that would not, however, received the label "Opinion of the Court."

Comments:

So, the questions remains, did Justice Kennedy tie or untie the Windsor Knot? Justice "Scowlia" makes a prediction in his dissent.
 

I prefer the 4-1 approach. But perhaps that just means I'd be an uncollegial judge.
 

The price paid by the left four to get Kennedy's vote was to join one of his metaphysical, law-free opinions on human dignity, a principle that only seems to exist in the alternative penumbral constitution of judicial imagination.

What Kennedy human dignity opinions lack in legal coherence, though, they more than make up in the entertainment value of particularly eviscerating Scalia dissents.
 

Laughing all the way to irrelevance...
 

Justice "Scowlia's" dissent demonstrates his slippery slope predictions going back to Lawrence evolving. See Ruth Marcus' WaPo column today hoping that he continues predictive with his DOMA dissent.
 

Kennedy has wrote three gay rights cases so far. Two of them was given to him by Stevens. He probably would have gotten it anyway.

I think the complaints about the opaque nature of the ruling is overblown. He's an easy target but what about a case like Heller? Not a fan of it, are you? It clearly is a compromise job. Skips over a thing or two.

The ruling made sense -- even the four others, including Ginsburg with her concerns that Roe rushed things, didn't want to go further. So, the state part made sense. Even gay activists have focused on that and specifically chose the issue since it is a moderate approach. They were more leery about Prop 8
 

Shag:

Justice Scalia's slippery slope predictions in this area of anti-democratic penumbral law have been spot on.
 

Blankshot, remember when you used to crow about how gay marriage has never won a popular vote. Those were good times, weren't they? Now your side has to hope that young people don't notice that you're a bunch of homophobic bigots. Good times, indeed...
 

BB:

It is true that Maine voters approved a SSM initiative.

This is how the redefining civil marriage should be handled in a democratic Republic.
 

Blankshot, the voters don't have an unrestricted right to discriminate against people. The Courts are supposed to protect minorities from that sort of abuse.

Good luck selling your homophobia to young voters!

 

BB: The Courts are supposed to protect minorities from that sort of abuse.

Courts are supposed to protect our liberties and enforce the law as written.

Courts are most certainly not here to rewrite the law to impose the preferred policies of themselves or electoral minorities.
 

Blankshot, the Courts are there to protect everyone's liberties, not just the liberties of bigoted religious fanatics like you.
 

By the way, your claim that the Courts are not in place to protect the liberties of electoral minorities is probably the most idiotic thing I have ever seen you post, and you have posted a lot of really idiotic shit. In fact, the ONLY rights the Court needs to protect are those of electoral minorities. Electoral majorities, by definition, don't need anyone to protect their rights.
 

BB:

This has nothing to do with liberty.

Homosexual couples are perfectly free to go to the Universalist Unitarian church of their choice, exchange vows and rings, then proclaim themselves to the world as "married." The government will not persecute them.

The issue here is whether society through their government should recognize and subsidize homosexual unions by redefining civil marriage to include them.

That is the province of our democracy and not the courts.
 

Dumbfuck, lack of persecution is not the same as having equal rights, and here in the U S of A we sort of value the fact that everyone has equal rights. And equal rights are most definitely a province of the Courts.

Again, good luck selling your bigot act to the voters of the future!
 

BB:

Equal protection means that the law treats similarly situated people the same.

Homosexual and heterosexual unions are not similarly situated for self evident reasons.

SSM proponents attempt to create similar situation by reducing marriage down to a contract for government benefits between people in a loving relationship. However, proponents undermine their own equality argument by urging that courts should rewrite civil marriage laws to add homosexual unions, but none of the other loving polygamous, polymorous and incestuous relationships out there.

Once again, whether society wants to redefine civil marriage to include homosexual unions in up to society through the democratic process and not the courts.

If your "voters of the future" join with other voters to form a majority to enact this proposal, that is what democracy is all about.
 

Homosexual and heterosexual unions are not similarly situated for self evident reasons.

Not "self evident" to the Court, apparently. In fact, I'd say their unions are very similarly situated to yours.

 

I can't tell you how sorry I am that, once again, this discussion has been hi-jacked not so much by Mr. DePalma, whose initial comment struck me as well within any boundaries of civility, but by people, especially "Bartbuster," who seems incapable of truly serious conversation.
 

My comments are as serious as anything that propaganda spewing troll has posted.

 

By the way, the fact that you still don't realize that he is nothing but a propaganda spewing troll says a lot about how seriously you should be taken.
 

Mr. W.? You are needed!
 

Sandy:

I'm apologize to everyone for departing from my usual policy of ignoring my personal cyber stalker.
 

You should be apologizing for the many years that you have been trolling the comments of this blog.
 

Bart, I agree with you that Kennedy's opinion (and his opinions in this are in general) leave him particularly open to the charge of "metaphysical, law free opinions on human dignity."

Having said that I think you're both missing and begging the question before the Court when you say things like "Courts are most certainly not here to rewrite the law", "Homosexual and heterosexual unions are not similarly situated" and "The issue here is whether society through their government should recognize and subsidize homosexual unions by redefining civil marriage to include them."

The issue before the Court could more fairly be framed as whether the government in recognizing opposite sex marriage but not same sex marriage is violating existing law, namely the Equal Protection or Due Process Clauses.

It's not self-evident that they are not similarly situated in a way relevant to that law, and finding that they are and invoking the law seems short of 'rewriting' it to me.

Having said that, I personally found Alito's opinion, once stripped of its own metaphysical trappings about the profundity of opposite sex marriage, to be the more compelling of all the opinions.
 

We then have other cases with metaphysical appeals to state dignity.

Alito's trappings is an important part of the argument and removal would rob it of a basic force. Why after all did DOMA treat a specific change in marriage, as compared to others where the couples are more diverse in numbers like easy divorce laws (that lead to a form of "polygamy" in the eyes of some), differently?

The conservative concern for changing the rules to fast would seem to invite the laboratory approach but the charm there, and this is but one aspect of Kennedy's opinion that is worthy of praise, is that we let the states alone to experiment with marriage. The feds didn't deny certain ones benefits. There was not even a DOMA to stop forcing states from having to recognize interracial marriages.

Why change in DOMA? Kennedy's opinion rings true there.
 

Joe:

Neither federalism nor the states as "laboratories of democracy" argument on behalf of federalism should apply here.

Congress is not unconstitutionally telling the states how they should define marriage. Rather, Congress is acting well within its Article I powers by determining to whom the federal government will extend recognition and benefits.

Kennedy's opinion turns the Constitution's federal government into a confederacy where states determine to whom the national government will provide benefits in order to protect human dignity or some such metaphysical nonsense.

I am looking forward to the day when a future president can replace a retiring Kennedy with his or her own Alito. As Sandy observed in his lead post, the left justices at least offer more intellectually coherent opinions when they rewrite the Constitution.
 

Rather, Congress is acting well within its Article I powers by determining to whom the federal government will extend recognition and benefits.

# posted by Bart DePalma : 12:53 PM


Which it did in a discriminatory manner.
 

joe

I agree with you on the 'dignity of the states' doctrine. If Kennedy's dignity talk is nonsense, then the dignity of the states doctrine is nonsense on stilts.

I think Alito's opinion can survive well without buying some of the trappings I mentioned. One doesn't need to accept the metaphysical argument about the 'essence' of marriage to see that it's at least a rational viewpoint common in the US and there is a vigorous debate on the matter. Absent a clear directive from the Constitution I don't think a Court should wade into those waters, but then again I'm pretty big on judicial restraint.

BB

You make a good point, the matter can't be dismissed by saying Congress was simply defining marriage for the purposes of federal programs operated under enumerated powers since they cannot adopt definitions that violate the Equal Protection Clause or other parts of the Constitution. For example, I don't think Congress could define marriages in such a way that interracial marriages don't fall under it.

 

Mr. W: "the matter can't be dismissed by saying Congress was simply defining marriage for the purposes of federal programs operated under enumerated powers since they cannot adopt definitions that violate the Equal Protection Clause"

Sure we can.

Kennedy acknowledges that Congress has the power to define marriage as it wishes in contravention of state definitions, then he proceeds to make an incoherent equal protection argument based upon human dignity that would not pass a first year Con Law exam to claim Congress may not do so in this case.

Kennedy does not argue that heterosexual and homosexual unions are similarly situated, but rather that the federal government has to follow state marriage law.

Nor does Kennedy claim Congress was acting irrationally in following the traditional definition of marriage or that a higher level of scrutiny applies to this issue.

If Kennedy offered similarly incoherent nonsense to uphold this section of DOMA, the professors here and elsewhere would be roundly and justifiably be skewering the opinion.
 

Our SALADISTA (FKA our yodeler) points out:

"Nor does Kennedy claim Congress was acting irrationally in following the traditional definition of marriage or that a higher level of scrutiny applies to this issue."

but fails to point out the background for DOMA reacting to Hawaii's possible legalization of SSM and a thin congressional record, in contrast to many months of congressional discussion in reapproving the VRA in 2006 backed with 15,000+ pages of evidence of various sorts.

Perhaps our SALADISTA agrees with Justice "Scowlia's" statement during orals that the overwhelming vote in reapproving VRA reading the minds of the Senators and Representatives in determining their intent, something a textualist normally doesn't do.

Regardless of what Kennedy said, on a comparative basis DOMA was irrational - and little mind reading of Senators and Representatives is needed to confirms this.
 

This comment has been removed by the author.
 

Shag:

Congress does not have to perform fact finding identifying a problem to make a statute constitutional, nor does such fact finding make an otherwise unconstitutional statute constitutional.


 

The "rational" argument against SSM is debatable (I think it is a matter of gender equality and that wouldn't be enough to meet heightened scrutiny, anyway) but that counsels letting the states experiment.

Why did the feds, suddenly in 1996, single out one specific change in marriage? Marriage changed in vast ways, ways directly affecting lots more people. There was a chance, especially after Perez v. Sharp, that states might be required to recognize interracial marriage, but Congress didn't pass a DOMA law then.

They did it because of animus against homosexuals. They said so at the time. It was in the debates. It was in the legislative findings. When a group is singled out like this with some clear evidence of animus, especially when it interferes with something traditionally mostly left to the states, it is not really "rational" even if you are for restraint.

IOW, there is a clear enough constitutional principle, especially given past cases protecting same sex couples. Perhaps, you think those are wrongly decided.
 

Joe:

Opposition to courts rewriting the constitutional equal protection to redefine marriage to include homosuxual unions is not the same as animus against homosexuals.

That is like arguing that laws against incestuous marriage show animus against families.
 

Our SALADISTA's (FKA our yodeler) pontification:

"Congress does not have to perform fact finding identifying a problem to make a statute constitutional, nor does such fact finding make an otherwise unconstitutional statute constitutional."

seems to suggest that Congress can identify a problem without evidence, fact finding. We know what Justice "Scowlia" thinks of legislative history but that does not stop him from reading the minds of an almost unanimous Congress in reapproving VRA in 2006. So he can ignore legislative history when it suits his textualist purposes but can engage in mind reading when it serves his purposes, sort of blowing hot and cold.

So our SALADISTA's response is a mere duck and weave with generalities.
 

Shag:

Congress can and frequently has enacted statutes without much thought about whether there is an actual problem or whether the statute would work in solving the problem.

So long as a court can find some rational basis for the law and it does not infringe upon a protected individual liberty, it passes muster.

I am not Justice Scalia. Address my points, not his.
 

Bart

It's hard to follow what Kennedy is saying in his opinion, but think it goes like this: deviating from the usual practice of deferring to state definitions of marriage raises flags that Congress was up to something unusual, and that unusual thing was impermissible animus. See Professor Hellman's post here on Balkinization, I think she comes closest to capturing Kennedy's argument.

"That is like arguing that laws against incestuous marriage show animus against families."

Such laws show animus toward incestual relations, so why shouldn't laws against homosexual unions be thought to show animus towards such unions?

"If Kennedy offered similarly incoherent nonsense to uphold this section of DOMA, the professors here and elsewhere would be roundly and justifiably be skewering the opinion."

It's comments like this that make me think you are 'on script.' Have you read the posts on the opinion here? Several of them, including this very post, have roundly skewered Kennedy for a poor or odd opinion.

 

joe

I would have liked to see the case analyzed under gender discrimination. It's odd they didn't go that way, it was quickly brought up and ignored at oral argument but interestingly the only justice who seemed interested was: Kennedy. I would think if he could have been convinced the four liberals would have signed on to that..
 

Our SALADISTA (FKA our yodeler) might inform us how " ... a court can find some rational basis for the law ... " from the mere words of a statute when there is no legislative history identifying the problem the statute may address and Congress' bases for enacting the statute. Maybe he can identify some substantive statutes so enacted by Congress.

I agree our SALADISTA is no Justice Scalia, as he is only a piping teapot in comparison Surely Scalia does not believe Congress acts in such a vacuous manner as our SALADISTA suggests.
 

Hellman: Respect for federalism does not play any role in justifying the decision. Rather, the deviation from traditional practices here serves the function of making clear that the federal action has the purpose and effect – or I would say the meaning – of demeaning gay couples.

Mr. W, this reading of the Kennedy syllogism does not quite work.

Kennedy claims that Congress is deviating from the "traditional practice" of allowing the states to define civil marriage.

While this is more respect for confederacy than federalism, Kennedy is relying on a respect for his version of the proper relationship between the national and state governments to tee up his argument that Congress is somehow acting with constitutionally impermissible animus.

Kennedy's logic is incoherent because he is simultaneously attempting to avoid making a standard equal protection case in favor of SSM which can be used against the states, but wants to reverse a law he personally dislikes.

BD: "That is like arguing that laws against incestuous marriage show animus against families."

Mr. W: Such laws show animus toward incestual relations, so why shouldn't laws against homosexual unions be thought to show animus towards such unions?


Let's reverse your observation.

If the traditional definition of marriage shows unconstitutional animus toward homosexual unions, why can't the same argument be made on behalf of incestuous (not to mention polygamous and polymorous) unions?

To the extent that it can be understood as objective test, Kennedy's metaphysical approach necessarily boils down to, if it declines to extend recognition and benefits to any group, the government is denying them human dignity and thus engaging in constitutionally impermissible animus.

In reality, Kennedy's metaphysical nonsense is a completely subjective and arbitrary approach: if it declines to extend recognition and benefits to any group Kennedy personally favors, the government is denying them human dignity and thus engaging in constitutionally impermissible animus.

Kennedy would never find that government refusal to extend recognition and benefits to polygamous, polymorous or incestuous was unconstitutional because Kennedy himself has animus toward such relationships.
 

Bart

If you'll recall I found Kennedy's opinion to be, in Professor Levinson's words, intellectually awkward. As I said, I preferred Alito's opinion.

I think Professor Hellman's interpretation puts it in the most coherent light possible. You may be correct that Kennedy's odd pages of homage to state authority over marriage was supposed to play a more key role and especially one which would protect the states from the logic of the Romer-esque other parts of the opinion, and I think you're correct that it's even more intellectually awkward if it is read that way.

As to your point about animus I imagine Kennedy would try to argue that polygamy and incest are different on the grounds that there is some harm present that he would be willing to accept as rational.

Whether that would convince me is another question...
 

Gender discrimination has not been accepted by the courts as a whole in this context, so it is not surprising that the USSC didn't use that approach. It is often not even used by gay couples.

So, it is logical for the USSC to follow Romer and Lawrence (and CLS v. Martinez dicta) to focus on sexual orientation. Kennedy briefly referenced sexual equality and said it was "difficult" to argue. This doesn't help the cause much.

The classification by personal characteristic (sex or sexual orientation / race) in the marriage context was noted by Ted Olson to be different than polygamy (different interests and conduct). IF states begin to recognize polygamy, the clash between federalism and EP would have to be further examined.

As to incest, states already are allowed to recognize first cousin marriages, marriages between adopted and step-relations and even an uncle and a niece in one case w/o the denial of federal benefits. As with polygamy, historically, the "definition of marriage" included such things.

But, there are different interests as well there, if again, the federal government decided to single them out. Which they never did to my knowledge like this.

If the feds did something like it did in the late 19th Century, such as denying voting rights in federal territory even for the mere promotion of the idea of polygamy, that level of "animus" without reasonable cause very well might be an issue. See, e.g., Romer v. Evans noting something like that goes too far.



 

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