an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Let me start by saying that I like the result in Windsor. I support same-sex marriage as a policy matter. And I can understand a few ways of concluding that same-sex marriage is constitutionally required.
However . . .
Justice Scalia's dissent in Windsor is a tour de force on two points: (1) there was no standing in the case; and (2) the Court's rationale for why the holding applies only to DOMA is nonsensical. The argument for standing is actually stronger in Perry, where the Court (with a strange lineup of Justices) said that there was no standing. For all of you who think that standing is just code for "Does the Court feel like reaching the merits?" you now have two fat trophies to mount on your wall.
With respect to the merits, I find Justice Kennedy's opinion hard to understand. He says it's not a federalism decision, though he talks a lot about states'-rights and marriage. He says that it is a Fifth Amendment decision, but does not explain why that Due Process Clause should be read differently from the identical provision in the Fourteenth Amendment. I must say I'm getting tired of reading Supreme Court opinions that throw in some lines of dicta at the end to limit their holdings. (Bush v. Gore, Grutter v. Bollinger, Lawrence v. Texas, Heller, and now Windsor.) More to the point, denying marriage to same-sex couples who are married in a state is unconstitutionally demeaning, but denying them any rights in a state is not? Who believes this? Anybody?
Maybe this boils down to a question of how much you like the common-law method. A basic precept of the common law is that courts reach results that seem right, but it takes a long time for a framework to emerge that makes sense of those precedents. In the case of sexual orientation, the framework seems obvious. The Court is applying heightened scrutiny to laws that single out gays and lesbians--they just don't want to say that. When they eventually strike down all state laws banning same-sex marriage, as they inevitably will, that's what they will say. I'm surprised, though, that you can't even find one Justice who will say that in 2013. Posted
by Gerard N. Magliocca [link]
I don't think the Court is saying that state-level same-sex marriage bans are unconstitutional -- just that federal ones have additional constitutional vulnerabilities that are sufficient to dispose of Windsor's case. I'm surprised to be chiding people on Balkinization about hyper-formalism, but I would have thought we were past the point where we assume that structural and rights arguments are rigidly separate categories.
Windsor sued to obtain a tax benefit. She didn't get it.
It's nice that Obama supported her and all, but at the end of the day, no benefit until the USSC ruled. And, though some might not believe it, if the USSC ruled to uphold DOMA would Obama just ignore it and give her the benefit anyway? Under what authority?
As to prudence, the matter was fully argued especially with BLAG's involvement, and not deciding it as the majority noted would have raised various complications. Standing is clear.
As to the merits, I don't understand the bit about the 5A and 14A being different here. What does that mean? How is he reading it differently?
The issue here is a specific government's power to do something, in particular a claim that they are wrongly targeting a particular group. Using rules that apply both to the states and the feds, the opinion notes that specifically targeting certain groups in a certain invidious way is a problem.
To judge this, the court has to look at the specific governmental body in question. Here it is the feds. They regulate marriage but generally have let the states develop marriage law generally as to who can get married etc. DOMA suddenly altered this and there is clear evidence also of invidious intent. So, federalism enters into it, since inhibiting the states is curious and somewhat suspicious behavior, raising questions something bad is occurring.
I agree with the common law method and that its results becomes clearer over time. But, the Court is not specifically providing heightened scrutiny to gays and lesbians. They are applying a more general principle and in a more restricted context.
DOMA is particularly problematic above and beyond state restrictions. Finally, if you have this much difficulty with the ruling, on some level you don't like its "result," since the reasoning is an aspect of it.
Cf. A separate post explaining the possible "result" of the reasoning in Prop 8, which might have led to the curious allotment of dissenters.
Wow did you miss the point here. For starters, surely you don't buy the moronic rightwing argument that it is morally incoherent to permit gay people to marry if you don't also legalize bigamy? (FYI I think both bigamy and gay marriage should be legal.) When moral questions are at stake, any step in the correct direction is coherent even if you don't go all the way. Before touting Scalia's supposed "tour de force" you need to ask yourself what really constitutes "coherence" in a
I'm curious what's moronic about that, except that it is, for the moment, inconvenient for liberals to defend bigamists? Polygamy has a lot sounder foundation as a traditional form of marriage than SSM ever had, and the government must deal daily with immigrants who are LEGALLY married to more than one person in their country of origin.
I'll agree the concern is largely insincere, but there's nothing wrong with pointing out your foe's glaring inconsistencies.
I'll try to be clearer. If I thought that standing was present in Windsor, which I don't, I would have said that a ban on same-sex marriage is gender discrimination that lacks a persuasive justification as required by the Supreme Court's cases. Would that get a majority? No. Would I write it as a separate opinion? Yes. It's clear and easy to understand. Kennedy himself said as much at oral argument.
As a purely political matter, I completely agree that allowing gay marriage does not compel us, in any way at all, to also permit bigamy (or incest marriage, or God forbid underage marriage). But as a matter of jurisprudence, surely it's a bit more complicated, right? I mean, either states have the run of defining who can marry whom, or they don't.
We can have very clean and intellectually pure compartments where the states decide whatever they want (man can marry woman, man can marry man, dad can marry daughter, mom can marry whole men's softball team, etc) and the federal government has no business denying benefits to any of these, or the federal government can decide, through passing laws, which kinds of marriages to confer benefits to.
If the federal government has no business excluding gay people even though there is a federal law doing exactly that, then on what grounds does the federal government exclude anyone a state asserts is married?
For whatever it's worth, I like the (social) result of the case; I'm less convinced the result is the doctrinally correct one, for whatever THAT'S worth.
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