Cite
as: 570 U. S. ____ (2013)
SCALIA, J., dissenting
SUPREME
COURT OF THE UNITED STATES
No.
12–307
UNITED
STATES, PETITIONER
v.
EDITH
SCHLAIN WINDSOR,
IN
HER CAPACITY AS EXECUTOR OF THE
ESTATE OF THEA
CLARA SPYER,
ET
AL
.
ON
WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS
FOR THE SECOND CIRCUIT
[June
26, 2013]
JUSTICE SCALIA,
with whom JUSTICE THOMAS joins, and with whom THE CHIEF
JUSTICE joins
as to Part I, dissenting.
This case
is about power in several respects. It is about the power of our people to
govern themselves, and the power of this Court to pronounce the law. Today’s
opinion aggrandizes the latter, with the predictable onsequence of diminishing
the former. We have no power to decide this case. And even if we did, we have
no power under the Constitution to invalidate this democratically adopted legislation.
The Court’s errors on both points spring forth from the same diseased root: an
exalted conception of the role of this institution in America.
I
A
The Court
is eager—hungry—to tell everyone its view of the legal question at the heart of
this case. Standing in the way is an obstacle, a technicality of little
interest to anyone but the people of We the People, who created it as a barrier
against judges’ intrusion into their lives. They gave judges, in Article III,
only the “judicial Power,” a power to decide not abstract questions but real,
concrete “Cases”
and “Controversies.” Yet the plaintiff and the Government agree entirely on what
should happen in this lawsuit. They agree that the court below got it right;
and they agreed in the court below that the court below that one got it right
as well. What, then, are we doing here? The
answer lies at the heart of the jurisdictional portion of today’s opinion,
where a single sentence lays bare the majority’s vision of our role.
The Court
says that we have the power to decide this case because if we did not, then our
“primary role in determining the constitutionality of a law” (at least one that
“has inflicted real injury on a plaintiff ”) would “become only secondary to
the President’s.” Ante, at 12. But
wait, the reader wonders—Windsor won below, and so cured her injury, and the
President was glad to see it. True, says the majority, but judicial review must
march on regardless, lest we “undermine the clear dictate of the
separation-of-powers principle that when an Act of Congress is alleged to
conflict with the Constitution, it is emphatically the province and duty of the
judicial department to say what the law is.” Ibid. (internal
quotation marks and brackets omitted).
That is
jaw-dropping. It is an assertion of judicial supremacy over the people’s
Representatives in Congress
and the
Executive. It envisions a Supreme Court standing (or rather enthroned) at the
apex of government, empowered to decide all constitutional questions, always and
everywhere “primary” in its role.
This image
of the Court would have been unrecognizable to those who wrote and ratified our
national charter. They knew well the dangers of “primary” power, and so created
branches of government that would be “perfectly coordinate by the terms of
their common commission,” none of which branches could “pretend to an exclusive
or superior right of settling the boundaries between their respective powers.”
The Federalist, No. 49, p. 314 (C. Rossitered. 1961) (J. Madison). The people
did this to protect themselves. They did it to
guard
their right to self-rule against the black-robed supremacy that today’s
majority finds so attractive. So it was that Madison could confidently state,
with no fear of contradiction, that there was nothing of “greater intrinsic
value” or “stamped with the authority of more enlightened patrons of liberty”
than a government of separate and coordinate powers. Id ., No. 47, at 301. For this reason we are quite forbidden to say
what the law is
whenever (as today’s opinion asserts) “‘an Act of Congress is alleged to conflict
with the Constitution.’” Ante , at 12.
We can do
so only when that allegation will determine the outcome of a lawsuit, and is
contradicted by the other party. The “judicial Power” is not, as the majority
believes, the power “‘to say what the law is,’” ibid.,
giving the
Supreme Court the “primary role in determining the constitutionality of laws.”
The majority must have in mind one of the foreign constitutions that pronounces
such primacy for its constitutional court and allows that primacy to be
exercised in contexts other than a lawsuit.
See, e.g., Basic Law for the Federal Republic of Germany, Art. 93. The
judicial power as Americans have understood it (and their English ancestors
before them) is the power to adjudicate, with conclusive effect, disputed
government claims (civil or criminal) against private persons, and disputed
claims by private persons against the government or other private persons.
Sometimes (though not always) the parties before the court disagree not with regard
to the facts of their case (or not only with regard to the facts) but with
regard to the applicable law—in which event (and only in which event) it
becomes the “‘province and duty of the judicial department to say what the law
is.’” Ante , at 12.
In other
words, declaring the compatibility of state or federal laws with the
Constitution is not only not the “primary role” of this Court, it is not a
separate, free standing role at all. 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.’” That is why, in
1793, we politely declined the Washington Administration’s request to “say what
the law is” on a particular treaty matter that was not the subject of a
concrete legal controversy. Correspondence and Public Papers of John Jay
486–489 (H. Johnston ed. 1893). And that is why, as our opinions have said,
some questions of law will never be
presented to this Court, because there will never be anyone with standing to
bring a lawsuit. See Schlesinger v. Reservists Comm. to Stop the War, 418 U. S.
208, 227 (1974); United States v.
Richardson, 418 U. S. 166, 179 (1974). As Justice Brandeis put it, we cannot
“pass up on the constitutionality of legislation in a friendly, non-adversary,
proceeding”; absent a “‘real, earnest and vital controversy between
individuals,’” we have neither any work to do nor any power to do it. Ashwander v. TVA, 297 U. S. 288, 346 (1936)
(concurring opinion) (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143
U. S. 339, 345 1892)).
Our
authority begins and ends with the need to adjudge the rights of an injured
party who stands before us seeking redress. Lujan v. Defenders of Wildlife, 504 U. S.
555, 560 (1992). That is completely
absent here. Windsor’s injury was cured by the judgment in her favor. And
while, in ordinary circumstances, the United States is injured by a directive
to pay a tax refund, this suit is far from ordinary.
Whatever
injury the United States has suffered will surely not be redressed by the
action that it, as a litigant, asks us to take. The final sentence of the
Solicitor General’s brief on the merits reads: “For the foregoing reasons, the
judgment of the court of appeals should be affirmed.” Brief for United States
(merits) 54 (emphasis added). That will not cure the Government’s injury, but
carve it into stone. One could spend many fruitless afternoons ransacking our
library for any other petitioner’s brief seeking an affirmance of the judgment
against it. What the petitioner United
States asks us to do in the case before us is exactly what the respondent
Windsor asks us to do: not to provide relief from the judgment below but to say
that that judgment was correct. And the same was true in the Court of Appeals:
Neither party sought to undo the judgment for Windsor, and so that court should
have dismissed the appeal (just as we should dismiss) for lack of jurisdiction.
Since both parties agreed with the
judgment of the District Court for the Southern District of New York, the suit
should have ended there. The further proceedings have been a contrivance,
having no object in mind except to elevate a District Court judgment that has
no precedential effect in other courts, to one that has precedential effect throughout
the Second Circuit, and then (in this Court) precedential effect throughout the
United States.
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. The United States reluctantly conceded that at oral
argument. See Tr. of Oral Arg. 19–20. The
closest we have ever come to what the Court blesses today was our opinion in
INS v. Chadha, 462 U. S. 919 (1983). But in that case, two parties to the
litigation disagreed with the position of the United States and with the court
below: the House and Senate, which had intervened in the case. Because Chadha concerned
the validity of a mode of congressional action—the one-house legislative
veto—the House and Senate were threatened with destruction of what they claimed
to be one of their institutional powers. The Executive choosing not to defend
that power, we permitted the House and Senate to intervene. Nothing like that is present here. To be sure, the Court in Chadha said that
statutory aggrieved-party status was “not altered by the fact that the
Executive may agree with the holding that the statute in question is
unconstitutional.” Id., at 930–931. But
in a footnote to that statement, the Court acknowledged Article III’s separate
requirement of a “justiciable case or controversy,” and stated that this
requirement was satisfied “because of the presence of the two Houses of
Congress as adverse parties.” Id., at
931, n. 6. Later in its opinion, the Chadha Court remarked that the United
States’ announced intention to enforce the statute also sufficed to permit
judicial review, even absent congressional participation. Id., at 939. That
remark is true, as a description of the judicial review conducted in the Court
of Appeals, where the Houses of Congress had not intervened. (The case
originated in the Court of Appeals, since it sought review of agency action
under 8 U. S. C. §1105a(a) (1976 ed.).) There, absent a judgment setting aside
the INS order, Chadha faced deportation. This passage of our opinion seems to
be addressing that initial standing in the Court of Appeals, as indicated by
its quotation from the lower court’s opinion, 462 U. S., at 939–940. But if it was addressing standing to pursue
the appeal, the remark was both the purest dictum (as congressional
intervention at that point made the required adverseness “beyond doubt,” id.,
at 939), and quite incorrect. When a private party has a judicial decree safely
in hand to prevent his injury, additional judicial action requires that a party
injured by the decree seek to undo it. In
Chadha, the intervening House and Senate fulfilled that requirement. Here no
one does.
The
majority’s discussion of the requirements of Article III bears no resemblance
to our jurisprudence. It accuses the amicus (appointed to argue against our
jurisdiction) of “elid[ing] the distinction between . . . the jurisdictional
requirements of Article III and the prudential limits on its exercise.” Ante, at 6. It then proceeds to call the
requirement of adverseness a “prudential” aspect of standing. Of standing. That is incomprehensible. A plaintiff (or
appellant) can have all the standing in the world—satisfying all three standing
requirements of Lujan that the majority so carefully quotes, ante, at 7—and yet
no Article III controversy may be before the court. Article III requires not
just a plaintiff (or appellant) who has standing to complain but an opposing
party who denies the validity of the complaint. It is not the amicus that has
done the eliding of distinctions, but the majority, calling the quite separate
Article III requirement of adverseness between the parties an element (which it
then pronounces a “prudential” element) of standing. The question here is not
whether, as the majority puts it, “the United States retains a stake sufficient
to support Article III jurisdiction,” ibid. the question is whether there is
any controversy (which requires contradiction) between the United States and
Ms. Windsor. There is not. I find it
wryly amusing that the majority seeks to dismiss the requirement of
party-adverseness as nothing more than a “prudential” aspect of the sole
Article III requirement of standing. (Relegating a jurisdictional requirement
to “prudential” status is a wondrous device, enabling courts to ignore the
requirement whenever they believe it “prudent”—which is to say, a good idea.)
Half a century ago, a Court similarly bent upon announcing its view regarding
the constitutionality of a federal statute achieved that goal by effecting a
remarkably similar but completely opposite distortion of the principles
limiting our jurisdiction. The Court’s notorious opinion in Flast v. Cohen, 392
U. S. 83, 98–101 (1968), held that standing was merely an element (which it
pronounced to be a “prudential” element) of the sole Article III requirement of
adverseness. We have been living with the chaos created by that power-grabbing
decision ever since, see Hein v. Freedom From Religion Foundation, Inc., 551 U.
S. 587 (2007), as we will have to live with the chaos created by this one.
The
authorities the majority cites fall miles short of supporting the
counterintuitive notion that an Article III
“controversy”
can exist without disagreement between the parties. In Deposit Guaranty Nat.
Bank v. Roper, 445 U. S. 326 (1980), the District Court had entered judgment in
the individual plaintiff ’s favor based on the defendant bank’s offer to pay
the full amount claimed. The plaintiff, however, sought to appeal the District
Court’s denial of class certification under Federal Rule of Civil Procedure 23.
There was a continuing dispute between
the parties concerning the issue raised on appeal. The same is true of the
other case cited by the majority, Camreta v. Greene, 563 U. S. ___ (2011).
There the District Court found that the defendant state officers had violated
the Fourth Amendment, but rendered judgment in their favor because they were
entitled to official immunity, application of the Fourth Amendment to their
conduct not having been clear at the time of violation. The officers sought to
appeal the holding of Fourth Amendment violation, which would circumscribe
their future conduct; the plaintiff continued to insist that a Fourth Amendment
violation had occurred. The “prudential”
discretion to which both those cases refer was the discretion to deny an appeal
even when a live controversy exists—not the discretion to grant one when it
does not. The majority can cite no case in which this Court entertained an
appeal in which both parties urged us to affirm the judgment below. And that is
because the existence of a controversy is not a “prudential” requirement that
we have invented, but an essential element of an Article III case or
controversy. The majority’s notion that a case between friendly parties can be
entertained so long as “adversarial presentation of the issues is assured
by the
participation of amici curiae prepared to defend with vigor” the other side of
the issue, ante, at 10, effects a breathtaking revolution in our Article III
jurisprudence.
It may be
argued that if what we say is true some Presidential determinations that
statutes are unconstitutional
will not
be subject to our review. That is as it should be, when both the President and
the plaintiff agree that
the
statute is unconstitutional. Where the Executive is enforcing an
unconstitutional law, suit will of course lie; but if, in that suit, the
Executive admits the unconstitutionality of the law, the litigation should end
in an order or a consent decree enjoining enforcement. This suit saw the light
of day only because the President enforced the Act (and thus gave Windsor
standing to sue) even though he believed it unconstitutional. He could have
equally chosen (more appropriately, some would say) neither to enforce nor to
defend the statute he believed to be unconstitutional, see Presidential
Authority to Decline to Execute Unconstitutional Statutes, 18 Op. Off. Legal
Counsel 199 (Nov. 2, 1994)—in which event Windsor would not have been injured,
the District Court could not have refereed this friendly scrimmage, and the
Executive’s determination of unconstitutionality would have escaped this
Court’s desire to blurt out its view of the law. The matter would have been
left, as so many matters ought to be left, to a tug of war between the
President and the Congress, which has innumerable means (up to and including
impeachment) of compelling the President to enforce the laws it has written. Or
the President could have evaded presentation of the constitutional issue to
this Court simply by declining to appeal the District Court and Court of
Appeals dispositions he agreed with. Be sure of this much: If a President wants
to insulate his judgment of unconstitutionality from our review, he can. What
the views urged in this dissent produce is not insulation from judicial review
but insulation from Executive contrivance.
The
majority brandishes the famous sentence from Marbury v. Madison, 1 Cranch 137,
177 (1803) that “[i]t is
emphatically
the province and duty of the judicial department to say what the law is.” Ante,
at 12 (internal quotation marks omitted). But that sentence neither says nor implies
that it is always the province and duty of the Court to say what the law
is—much less that its responsibility in that regard is a “primary” one. The
very next sentence of Chief Justice Marshall’s opinion makes the crucial qualification
that today’s majority ignores: “Those who apply the rule to particular cases,
must of necessity expound and interpret that rule.” 1 Cranch, at 177 (emphasis
added). Only when a “particular case” is before us—that is, a controversy that
it is our business to resolve under Article III—do we have the province and
duty to pronounce the law. For the views of our early Court more precisely
addressing the question before us here, the majority ought instead to have
consulted the opinion of Chief Justice Taney in Lord v. Veazie, 8 How. 251
(1850):
“The
objection in the case before us is . . . that the plaintiff and defendant have
the same interest, and that interest adverse and in conflict with the interest
of third persons, whose rights would be seriously affected if the question of
law was decided in the manner that both of the parties to this suit desire it
to be.
“A
judgment entered under such circumstances, and for such purposes, is a mere
form. The whole proceeding was in contempt of the court, and highly
reprehensible . . . . A judgment in form, thus procured, in the eye of the law
is no judgment of the court. It is a nullity, and no writ of error will lie
upon it. This writ is, therefore, dismissed.” Id., at 255–256.
There is,
in the words of Marbury, no “necessity [to] expound and interpret” the law in
this case; just a desire
to place
this Court at the center of the Nation’s life.
1 Cranch, at 177.
B
A few
words in response to the theory of jurisdiction set forth in JUSTICE ALITO’s
dissent: Though less far reaching in its consequences than the majority’s
conversion of constitutionally required adverseness into a discretionary element
of standing, the theory of that dissent similarly elevates the Court to the
“primary” determiner of constitutional questions involving the separation of
powers, and, to boot, increases the power of the most dangerous branch: the
“legislative department,” which by its nature “draw[s] all power into its impetuous
vortex.” The Federalist, No. 48, at 309 (J. Madison). Heretofore in our
national history, the President’s failure to “take Care that the Laws be
faithfully executed,” U. S. Const., Art. II, §3, could only be brought before a
judicial tribunal by someone whose concrete interests were harmed by that
alleged failure. JUSTICE ALITO
would create a system in which Congress can hale the
Executive before the courts not only to vindicate its own institutional powers
to act, but to correct a perceived inadequacy in the execution of its laws. This
would lay to rest Tocqueville’s praise of our judicial system as one which
“intimately bind[s] the case made for the law with the case made for one man,”
one in which legislation is “no longer exposed to the daily aggression of the
parties,” and in which “[t]he political question that [the judge] must resolve
is linked to the interest” of private litigants. A. de Tocqueville, Democracy in America 97 (H.
Mansfield & D. Winthrop eds. 2000). That would be replaced by a system in
which Congress and the Executive can pop immediately into court, in their
institutional capacity, whenever the President refuses to implement a statute
he believes to be unconstitutional, and whenever he implements a law in a
manner that is not to Congress’s liking. JUSTICE
ALITO’s notion
of standing will likewise enormously shrink the area to which “judicial
censure, exercised by the courts on legislation, cannot extend,” ibid. For
example, a bare majority of both Houses could bring into court the assertion
that the Executive’s implementation of welfare programs is too generous—a
failure that no other
litigant would have standing to complain about. Moreover, as we indicated in
Raines v. Byrd, 521 U.S.811, 828
(1997), if Congress can sue the Executive for the erroneous application of the
law that “injures” its power to legislate, surely the Executive can sue
Congress for its erroneous adoption of an unconstitutional law that “injures”
the Executive’s power to administer—or perhaps for its protracted failure to
act on one of his nominations. The opportunities for dragging the courts into
disputes hitherto left for political resolution are endless. JUSTICE
ALITO’s dissent
is correct that Raines did not formally decide this issue, but its reasoning
does. The opinion spends three pages discussing famous, decades-long disputes
between the President and Congress—regarding congressional power to forbid the
Presidential removal of executive officers, regarding the legislative veto,
regarding congressional appointment of executive officers, and regarding the
pocket veto—that would surely have been promptly resolved by a
Congress-vs.-the-President lawsuit if the impairment of a branch’s powers alone
conferred standing to commence litigation. But it does not,
and never has; the “enormous power that the judiciary would acquire” from the
ability to adjudicate such suits
“would have made a mockery of [Hamilton’s] quotation of Montesquieu to the
effect that ‘of the three powers above mentioned . . . the JUDICIARY is next to
nothing.’” Barnes v. Kline, 759 F. 2d
21, 58 (CADC 1985) (Bork, J., dissenting) (quoting The Federalist No. 78 (A.
Hamilton)).
To be
sure, if Congress cannot invoke our authority in the way that JUSTICE ALITO
proposes, then its only recourse is to confront the
President directly. Unimaginable evil this is not. Our system is designed for
confrontation. That is what “[a]mbition
. . . counteract[ing] ambition,” The Federalist, No. 51, at 322 (J. Madison),
is all about. If majorities in both Houses of Congress care enough about the
matter, they have available innumerable ways to compel executive action without
a lawsuit—from refusing to confirm Presidential appointees to the elimination
of funding. (Nothing says “enforce the Act” quite like “. . . or
you will
have money for little else.”) But the condition is crucial; Congress must care
enough to act against the President itself, not merely enough to instruct its
lawyers to ask us to do so. Placing the Constitution’s entirely anticipated
political arm wrestling into permanent judicial receivership does not do the
system a favor. And by the way, if the President loses the lawsuit but does not
faithfully implement the Court’s decree, just as he did not faithfully
implement Congress’s statute, what then? Only Congress can bring him to heel by
. . . what do you think? Yes: a direct
confrontation with the President.
II
For the
reasons above, I think that this Court has, and the Court of Appeals had, no
power to decide this suit. We should vacate the decision be low and remand to
the Court of Appeals for the Second Circuit, with instructions to dismiss the
appeal. Given that the majority has volunteered its view of the merits,
however, I proceed to discuss that as well.
A
There are
many remarkable things about the majority’s merits holding. The first is how
rootless and shifting its justifications are. For example, the opinion starts
with seven full pages about the traditional power of States to define domestic
relations—initially fooling many readers, I am sure, into thinking that this is
a federalism opinion. But we are
eventually told that “it is unnecessary to decide whether this federal
intrusion on state power is a violation of the Constitution,” and that “[t]he
State’s power in defining the marital relation is of central relevance in this
case quite apart from principles of federalism” because “the State’s decision
to give this class of persons the right to marry conferred upon them a dignity
and status of immense import.” Ante, at 18. But no one questions the power of
the States to define marriage (with the concomitant conferral of dignity and
status), so what is the point of devoting seven pages to describing how long
and well stablished that power is? Even after the opinion has formally
disclaimed reliance upon principles of federalism, mentions of “the usual
tradition of recognizing and accepting state definitions of marriage” continue.
See, e.g., ante, at 20. What to make of this? The opinion never explains. My guess is that the majority, while
reluctant to suggest that defining the meaning of “marriage” in federal
statutes is unsupported by any of the Federal Government’s enumerated powers, nonetheless
needs some rhetorical basis to support its pretense that today’s prohibition of
laws excluding same-sex marriage is confined to the Federal Government (leaving
the second, state-law shoe to be dropped later, maybe next Term). But I am only
guessing. Equally perplexing are the
opinion’s references to “the Constitution’s guarantee of equality.” Ibid. Near
the end
of the
opinion, we are told that although the “equal protection guarantee of the
Fourteenth Amendment makes [the] Fifth Amendment [due process] right all the
more specific and all the better understood and reserved”—what can that
mean?—“the Fifth Amendment itself withdraws from Government the power to
degrade or demean in the way this law does.” Ante, at 25. The only possible
interpretation of this statement is that the Equal Protection Clause, even the
Equal Protection Clause as incorporated in the Due Process Clause, is not the
basis for today’s holding. But the
portion of the majority opinion that explains why DOMA is unconstitutional
(Part IV) begins by citing Bolling v. Sharpe, 347 U. S. 497 (1954), Department
of Agriculture v. Moreno, 413 U. S. 528 (1973), and Romer v. Evans, 517 U. S. 620
(1996)—all of which are equal protection cases.
And those three cases are the only authorities that the Court cites in
Part IV about the Constitution’s meaning, except for its citation of Lawrence v. Texas, 539 U. S. 558 (2003) (not
an equal protection case) to support its passing assertion that the
Constitution protects the “moral and sexual choices” of same-sex couples, ante,
at 23. Moreover, if this is meant to be
an equal-protection opinion, it is a confusing one. The opinion does not
resolve and indeed does not even mention what had been the central question in
this litigation: whether, under the Equal Protection Clause, laws restricting
marriage to a man and a woman are reviewed for more than mere rationality. That
is the issue that divided the parties and the court below, compare Brief for
Respondent Bipartisan Legal Advisory Group of U. S. House of Representatives
(merits) 24–28 (no), with Brief for Respondent Windsor (merits) 17–31 and Brief
for United States (merits) 18–36 (yes); and compare 699 F. 3d 169, 180–185 (CA2
2012) (yes), with id., at 208–211 (Straub, J., dissenting in part and
concurring in part) (no). In accord with my previously expressed skepticism
about the Court’s “tiers of scrutiny” approach, I would review this
classification only for its rationality. See United States v. Virginia, 518 U.
S. 515, 567–570 (1996) (SCALIA , J.,
dissenting). As nearly as I can tell, the Court agrees with that; its opinion
does not apply strict scrutiny, and its central propositions are taken from rational-basis
cases like Moreno. But the Court certainly does not apply anything that
resembles that deferential framework. See Heller v. Doe, 509 U. S. 312, 320
(1993) (a classification “‘must be upheld . . . if there is any reasonably
conceivable state of facts’” that could justify it).
The
majority opinion need not get into the strict-vs.-rational-basis scrutiny
question, and need not justify its
holding
under either, because it says that DOMA is unconstitutional as “a deprivation
of the liberty of the person protected by the Fifth Amendment of the
Constitution,” ante, at 25; that it violates “basic due process” principles,
ante, at 20; and that it inflicts an “injury and indignity” of a kind that
denies “an essential part of the liberty protected by the Fifth Amendment,”
ante, at 19. The majority never utters the dread words “substantive due
process,” perhaps sensing the disrepute into which that doctrine has fallen,
but that is what
those
statements mean. Yet the opinion does not argue that same-sex marriage is “deeply
rooted in this Nation’s history and tradition,” Washington v.
Glucksberg, 521 U. S. 702, 720–721 (1997), a claim that would of course be
quite absurd. So would the further suggestion (also necessary, under our
substantive-due-process precedents) that a world in which DOMA exists is one
bereft of “‘ordered liberty.’” Id., at 721 (quoting Palko v. Connecticut, 302
U. S. 319, 325 (1937)). Some might conclude
that this loaf could have used a while longer in the oven. But that would be
wrong; it is already overcooked. The most expert care in preparation cannot
redeem a bad recipe. The sum of all the Court’s nonspecific hand-waving is that
this law is invalid (maybe on equal-protection grounds, maybe on
substantive-due-process grounds, and perhaps with some amorphous federalism
component playing a role) because it is motivated by a “‘bare . . . desire to
harm’” couples in same-sex marriages. Ante, at 20. It is this proposition with
which I will therefore engage.
B
As I have
observed before, the Constitution does not forbid the government to enforce
traditional moral and
sexual
norms. See Lawrence v. Texas, 539 U. S. 558, 599 (2003) (SCALIA, J., dissenting). I will not swell
the U. S. Reports with restatements of that point. It is enough to say that the
Constitution neither requires nor forbids our society to approve of same-sex
marriage, much as it neither requires nor forbids us to approve of no-fault
divorce, polygamy, or the consumption of alcohol. However, even setting aside traditional moral
disapproval of same-sex marriage (or indeed same-sex sex), there are many
perfectly valid—indeed, downright boring—justifying rationales for this
legislation. Their existence ought to be the end of this case. For they give
the lie to the Court’s conclusion that only those with hateful hearts could
have voted “aye” on this Act. And more importantly, they serve to make the
contents of the legislators’ hearts quite irrelevant: “It is a
familiar principle of constitutional law that this Court will not strike down
an otherwise constitutional statute on the basis of an alleged illicit
legislative motive.” United States v. O’Brien, 391 U.S. 367, 383 (1968). Or at
least it was a familiar principle. By holding to the contrary, the majority has
declared open season on any law that (in the opinion of the law’s opponents and
any panel of like-minded federal judges)
can be
characterized as mean-spirited. The
majority concludes that the only motive for this Act was the “bare . . . desire
to harm a politically unpopular group.” Ante, at 20. Bear in mind that the
object of this condemnation is not the legislature of some once-Confederate
Southern state (familiar objects of the Court’s
scorn,
see, e.g. , Edwards v. Aguillard, 482 U. S. 578 (1987)), but our respected
coordinate branches, the Congress and Presidency of the United States. Laying
such a charge against them should require the most extraordinary evidence, and
I would have thought that every attempt would be made to indulge a more anodyne
explanation for the statute. The majority does the opposite—affirmatively
concealing from the reader the arguments that exist in justification. It makes only a passing mention of the
“arguments put forward” by the Act’s defenders, and does not even trouble to
paraphrase or describe them. See ante, at
21. I imagine that this is because it is harder to maintain the illusion of the
Act’s supporters as unhinged members of a wild-eyed lynch mob when one first
describes their views as they see them. To
choose just one of these defenders’ arguments, DOMA avoids difficult
choice-of-law issues that will now arise absent a uniform federal definition of
marriage. See, e.g., Baude, Beyond DOMA: Choice of State Law in Federal
Statutes, 64 Stan. L. Rev. 1371 (2012). Imagine a pair of women who marry in
Albany and then move to Alabama, which does not “recognize as valid any
marriage of parties of the same sex.” Ala. Code §30–1–19(e)
(2011). When the couple files their next
federal tax return, may it be a joint one? Which State’s law controls, for
federal-law purposes: their State of celebration (which recognizes the marriage)
or their State of domicile (which does not)? (Does the answer depend on whether they were
just visiting in Albany?) Are these questions to be answered as a matter of
federal common law, or perhaps by borrowing a State’s choice-of-law rules? If
so,which State’s?
And what about States where the status of an out-of-state same-sex marriage is
an unsettled question under local law? See Godfrey v. Spano, 13 N. Y. 3d 358,
920 N. E. 2d 328 (2009). DOMA avoided all of this uncertainty by specifying
which marriages would be recognized for federal purposes. That is a classic
purpose for a definitional provision.
Further,
DOMA preserves the intended effects of prior legislation against then-unforeseen
changes in circumstance. When Congress provided (for example) that a special
estate-tax exemption would exist for spouses, this exemption reached only opposite-sex
spouses—those being the only sort that were recognized in any State at the time
of DOMA’s passage. When it became clear that changes in state law might one day
alter that balance, DOMA’s definitional section was enacted to ensure that
state-level experimentation did not automatically alter the basic operation of
federal law, unless and until Congress made the further judgment to do so on
its own. That is not animus—just stabilizing prudence. Congress has hardly demonstrated
itself unwilling to make such further, revising judgments upon due
deliberation. See, e.g., Don’t Ask, Don’t Tell Repeal Act of 2010, 124 Stat.
3515. The Court mentions none of this.
Instead, it accuses the Congress that enacted this law and the President who signed
it of something much worse than, for example, having acted in excess of
enumerated federal powers—or even having drawn distinctions that
prove to be irrational. Those legal
errors may be made in good faith, errors though they are. But the majority says
that the supporters of this Act acted with malice—with the “purpose” (ante, at
25) “to disparage and to injure” same-sex couples. It says that
the motivation for DOMA was to “demean,” ibid .; to “impose inequality,” ante, at
22; to “impose . . . a stigma,” ante, at 21; to deny people “equal dignity,” ibid.;
to brand gay people as “unworthy,” ante,
at 23; and to “humiliat[e]” their children, ibid. (emphasis added).
I am sure
these accusations are quite untrue. 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 condemn, demean, or
humiliate other constitutions. To hurl such accusations so casually demeans
this
institution. In the majority’s judgment, any resistance to its holding is beyond
the pale of reasoned disagreement. To question its high-handed invalidation of
a presumptively valid statute is to act (the majority is sure) with the purpose
to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human
beings, our fellow citizens, who are homosexual. All that, simply for
supporting an Act that did no more than codify an aspect of marriage that had
been unquestioned in our society for most of its existence—indeed, had been
unquestioned in virtually all societies for virtually all of human history. It
is one thing for a society to elect change; it is another for a court of law to
impose change by adjudging those who oppose it hostes humani generis, enemies
of the human race.
* * *
The
penultimate sentence of the majority’s opinion is a naked declaration that
“[t]his opinion and its holding are confined” to those couples
“joined in same-sex marriages made lawful by the State.” Ante, at 26, 25. I have
heard such “bald, unreasoned disclaimer[s]” before. Lawrence, 539 U. S., at 604. When the Court declared
a constitutional right to homosexual sodomy, we were assured that the case had
nothing, nothing at all to do with “whether the government must give formal
recognition to any relationship that homosexual persons seek to enter.” Id., at
578. Now we are told that DOMA is
invalid because it “demeans the couple, whose moral and sexual choices the Constitution
protects,” ante, at 23—with an accompanying citation of Lawrence. It takes real cheek for today’s majority to
assure us, as it is going out the door, that a constitutional requirement to
give formal recognition to same-sex marriage is not at issue here—when what has
preceded that
assurance is a lecture on how superior the majority’s moral judgment in favor
of same-sex marriage is to the Congress’s hateful moral judgment against it. I
promise you this: The only thing that will “confine” the Court’s holding is its
sense of what it can get away with. I do
not mean to suggest disagreement with THE
CHIEF JUSTICE’s view, ante, p. 2–4 (dissenting
opinion), that lower federal courts and state courts can distinguish today’s
case when the issue before them is state denial of marital status to same-sex
couples—or even that this Court could theoretically do so. Lord, an opinion with such scatter-shot
rationales as this one (federalism noises among them) can be distinguished in
many ways. And deserves to be. State and lower federal courts should take the
Court at its word and distinguish away. In my opinion, however, the view that this Court
will take of state prohibition of same-sex marriage is indicated beyond
mistaking by today’s opinion. As I have said, the real rationale of today’s
opinion, whatever disappearing trail of its legalistic argle-bargle one chooses
to follow, is that DOMA is motivated by “‘bare . . . desire to harm’” couples in same-sex marriages. Supra, at 18. How easy it is, indeed how
inevitable, to reach the same conclusion with regard to state laws denying
same-sex couples marital status. Consider how easy (inevitable) it is to make
the following substitutions in a passage from today’s opinion ante, at 22:
“DOMA’s
This state law’s principal effect is to identify a subset of state-sanctioned
marriages constitutionally protected sexual relationships, see Lawrence, and make
them unequal. The principal purpose is to impose inequality, not for other
reasons like governmental efficiency. Responsibilities, as well as rights, enhance
the dignity and integrity of the person. And DOMA this state law contrives to deprive
some couples married under the laws of their State enjoying constitutionally
protected sexual relationships, but not other couples, of both rights and
responsibilities.”
Or try
this passage, from ante, at 22–23:
“[DOMA]
This state law tells those couples, and all the world, that their otherwise
valid marriages relationships are unworthy of federal state recognition. This places same-sex couples in an unstable
position of being in a second-tier marriage relationship. The differentiation
demeans the couple, whose moral and sexual choices the Constitution protects,
see Lawrence, . . . .”
Or this,
from ante, at 23—which does not even require alteration, except as to the
invented number:
“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.”
Similarly
transposable passages—deliberately transposable, I think—abound. In sum, that
Court which finds it so horrific that Congress irrationally and hatefully
robbed same-sex couples of the “personhood and dignity” which state
legislatures conferred upon them, will of a certitude be similarly appalled by
state legislatures’ irrational and hateful failure to acknowledge that
“personhood and dignity” in the first place. Ante, at 26. As far as this Court is concerned, no one
should be fooled; it is just a matter of listening and waiting for the other
shoe. By formally declaring anyone
opposed to same-sex marriage an enemy of human decency, the majority arms well
every challenger to a state law restricting marriage to its traditional
definition. Henceforth those challengers will lead with this Court’s
declaration that there is “no
legitimate
purpose” served by such a law, and will claim that the traditional definition
has “the purpose and effect to disparage and to injure” the “personhood and
dignity” of same-sex couples, see ante, at 25, 26. The majority’s limiting
assurance will be meaningless in the face of language like that, as the
majority well knows. That is why the language is there. The result will be a
judicial distortion of our society’s debate over marriage—a debate that can
seem in need of our clumsy “help” only to a member of this institution. 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.
Since DOMA’s passage, citizens on all
sides of the question have seen victories and they have seen defeats. There have
been plebiscites, legislation, persuasion, and loud voices—in other words, democracy.
Victories in one place for some, see North Carolina Const.,
Amdt. 1 (providing that “[m]arriage between one man and one woman is the only
domestic legal union that shall be valid or recognized in this State”)
(approved by a popular vote, 61% to 39% on May 8, 2012), are offset by
victories in other places for others,
see Maryland Question 6 (establishing “that Maryland’s civil marriage laws
allow gay and lesbian couples to obtain a civil marriage license”) (approved by
a popular vote, 52% to 48%, on November 6, 2012). Even in a single State, the
question has come out differently on different occasions. Compare Maine Question
1 (permitting “the State of Maine to issue marriage licenses to same-sex couples”)
(approved by a popular vote, 53% to 47%, on November 6, 2012) with Maine
Question 1 (rejecting “the new law that lets same-sex couples marry”) (approved
by a popular vote, 53% to 47%, on November 3, 2009). 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. But that the
majority will not do. Some will rejoice in today’s decision, and some will
despair at it; that is the nature of a controversy that matters so much to so
many. But the Court has cheated both sides,
robbing the winners of an honest victory, and the losers of the peace that comes
from a fair defeat. We owed both of them better. I dissent.
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