I've been staring at my screen for a while trying to figure out what I wanted to say about United States v Windsor, the DOMA case that was decided yesterday. My initial plan was simply to do a Natalie-style breakdown of the opinion for those of my readers who value such things, and then do a separate post with my personal responses, but after reading the whole thing, I'm not sure I can separate them cleanly enough to do that.
Some of our most celebrated Supreme Court cases have been, I think, wrongly decided. Brown v Board of Education is one such case (although some have argued that there was no legally correct answer, I don't know of anybody who thinks the Brown I decision was correct on the merits of the case). Griswold v Connecticut, the case that enunciated federal protection for the right to privacy, is another (that the constitution guarantees some privacy-like rights is quite clear, but not even the prevailing justices in that case could agree on where, exactly, the constitution guarantees the right to privacy in general). I think that Windsor is going to go down in history with these cases. Wide-eyed law students in the future will learn about the time in 2013 when the Supreme Court struck a historic blow for equal rights - by ignoring the law.
So ... what happened?
The Windsor in Windsor is Edith Windsor, a New York lesbian. Windsor and her partner got married in Canada, gay marriage jurisdictions in the United States being hard to find at the time. New York then decided it would recognize same-sex marriages performed outside of its borders (later it would decide to permit same-sex marriage within its borders, but that's not relevant to the story). At this point, Windsor and her wife, Thea Spyer, were legally married as a matter of New York law. Spyer died, and willed her entire estate to her wife.
As you may know, inheritance is subject to federal income tax - it is, after all, money that you didn't have before, which is pretty much the definition of income. For its own inscrutable reasons, however, the federal tax code does not require you to pay income tax on an inheritance you receive from a spouse. You can see where this is going. For purposes of New York law, Windsor had inherited from her spouse.
For purposes of federal law, though, Windsor had not inherited from her spouse, because Section 3 of the Defense of Marriage Act defines "spouse" for purposes of federal law as an opposite-sex person (I mean that literally; Section 3 of DOMA amends the aptly named Dictionary Act). As a result, Windsor paid the Treasury her inheritance tax, then sued for a refund. The Treasury refused, since Spyer had not been Windsor's wife for federal law purposes, and Windsor took the government to federal district court on the grounds that Section 3 of DOMA violated the Equal Protection Clause.
Her argument for that was fairly bold and very much in keeping with the story that is going to be told to future generations about the gay rights struggle. But this is where things begin to get weird from a civics point of view, so before we get to her argument, pay attention to what happened next: the government told the district court that it agreed with Windsor's argument and should be ordered to refund her tax, with interest - while simultaneously continuing to enforce Section 3. While arguing that Windsor should get her tax back because Section 3 was unconstitutional, the government was simultaneously collecting estate taxes from other people in her situation (and otherwise denying legally married same-sex spouses recognition under federal law).
As might be expected when the defendant's argument is, "I am wrong and the plaintiff is right," Windsor won at the district court level. The government then appealed to the Second Circuit Court of Appeals, while continuing to hold Windsor's estate tax. This is where the gentle reader may expect the government to turn its cloak and ask for Section 3 to be upheld and the tax retained. But what happened was even more incredible - the government's argument on appeal was that it should lose the appeal, because Section 3 was unconstitutional. Take a moment to appreciate that: the government said it should lose, lost, and then appealed its loss on the grounds that it should have lost.
Under these circumstances, it is perhaps hardly surprising that the government lost. The government then appealed again, and argued to the Supreme Court that it should ... wait for it ... lose.
And it did.
You can probably tell that I have some feelings about that whole process. But let's get on to the actual opinion.
If you have the good fortune to come across the better sort of popular news reporting about legal issues, you may have heard that the majority opinion in Windsor is ... confusing. This is absolutely true, but to understand why, we need to review a few basics of common law. One of the reasons I dislike popular news reporting about legal issues so much is that it can't seem to decide which story it wants to tell. On the one hand, there is usually a narrative about "winning" and "losing," as if people pay attention to these things strictly for the entertainment value of observing the litigants fight. On the other hand, there is usually a narrative about which laws have been struck down, died, revived, or other such agonistic terms.
Neither narrative is wholly satisfactory. What people really want to know, I think, is what the state of the law is after the case is over. And to understand that, you have to understand how the case arose (which is one reason I spent so much time sketching that) and how one side "won" or "lost," a law "died" or was upheld. Remember that the whole manner in which courts create law (which in a broad sense they are supposed to do; let us have no childish nonsense about "activist" vs. "conservative" judges here) is by articulating principles, so that the legal reasoning in one case can be applied to analogous - but not identical - situations.
So what are the principles that underlie Windsor? The majority spends several pages discussing the proper boundaries of federal action with respect to marriage. "By history and tradition the definition and regulation of marriage, as will be discussed in more detail, has been treated as being within the authority and realm of the separate States." Aha, thinks the reader - this is a federalism argument. "Federalism" is a fancy word for the principle that not everything is something that the federal government can regulate. Yet the majority then says that it is not deciding the case on federalism grounds, because that's unnecessary: "Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance."
So ... apparently we will not be hearing whether Section 3 violates federalism principles after all. What then? The majority turns to a principle that it will restate in several forms: "DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. [citation omitted] The Constitution's guarantee of equality 'must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot' justify disparate treatment of that group." Fair enough, it seems. New York wants to protect same-sex couples (by allowing them to marry); Section 3 does the opposite (by refusing to acknowledge their otherwise valid marriage). Equal protection violation, problem sorted.
Take another look at that sentence and ask yourself what the animating principle is. Is the constitutional problem here that Section 3 seeks to injure the class that New York seeks to protect? Or is it that Section 3 itself reflects a "bare congressional desire to harm a politically unpopular group?"
If the former, then Windsor would seem to stand for the very alarming principle that federal law cannot override state law. That is entirely counter to our tradition of federalism. The federalist principle is that there are some areas as to which the federal government cannot make law at all, but in those areas where the federal government can act, its law is supreme. This is what Article VI, clause 2 of the federal constitution means when it says "the laws of the United States ... shall be the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding."
It seems incredible that the majority opinion would be based on such an elementary error. So perhaps the real principle is that laws that represent a bare desire to harm a politically unpopular group are unconstitutional.
This is an attractive statement, but also an incredibly strange one to anybody who is even moderately versed in the actual law of equal protection in this country. As I've said before, neither the Equal Protection Clause of the Fourteenth Amendment, the Due Process Clause of the Fifth Amendment, nor the general concept of "equal protection" means that all laws must treat everybody equally. This is easy to forget when one is caught up in the emotions of a righteous crusade for civil rights, but it is a very ordinary concept. Prior to Windsor, some people were denied the benefits of federal marriage law. After Windsor, some people are denied the benefits of federal marriage law. Let's call them "single people." Why can't single people demand federal marriage rights under equal protection?
The answer is as simple, and as complex, as saying that single people and married people are not the same. The Supreme Court puts it this way: "The equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantages to various groups or persons."
Because of this tension - on the one hand, we want everybody to enjoy equal protection under the law; on the other hand, taking that principle to its logical extreme means virtually no law is valid - American jurisprudence has a familiar and fairly well understood way to balance. This is the "tiers of scrutiny" or "heightened scrutiny" approach you may have heard about. The principle is this: when a law benefits or harms one class of people over another (say, giving married people benefits that only married people can have, or imposing penalties on convicted criminals that only convicted criminals have to suffer), the question is what the purpose of the law is and what sort of distinction is being made. Roughly, when a law draws a distinction based on something that is very rarely relevant to legitimate state interests in general, the classification must be narrowly tailored and the specific state interest in question must be a "compelling" one. The classic example is race (well, it is now; originally it was religion or national origin). For instance, suppose the United States were suffering from a plague that only infected white people, with a 100% mortality rate, which could only be communicated by shaking right hands. A state could very likely pass a law forbidding white people to shake right hands with each other, in this case, despite the fact that the law would only burden the behavior of white people (a class based on race), because preventing the spread of such a virulent plague is a "compelling" government interest, and the law was as narrowly tailored as possible (it would, for instance, be unconstitutional to pass a law preventing white people to have physical contact with each other - the goal is still compelling, but the method is no longer as narrowly tailored as possible).
At the other end of the spectrum is "rational basis scrutiny," which is applied when the law draws a distinction of the sort that is often relevant to legitimate state interests in general. In this case, the rule requires only that the government's goal be a "legitimate" one, and that the classification be one that a rational person could find legitimate - even if other people disagreed. Married people vs. single people is one such classification - if a law distinguishes between married people and single people (a distinction that is often relevant to legitimate government interests), it need only be based on a set of facts that a rational person could believe to be true. Those facts don't have to be true. They don't have to be popular.
What Windsor really wanted was for the Supreme Court to say that sexual orientation is very rarely relevant to legitimate state interests - to say that it is like race, religion, or national origin. I think it fair to say that this is what most LGBT advocates, including myself, want the law to say. And indeed, most of the legal arguments in Windsor were about precisely this question. This is how we decide equal protection arguments in this country, and the obvious fact that virtually every law creates inequality by the very nature of lawmaking.
But, having raised the specter of equal protection law, the opinion doesn't even mention the tiered scrutiny test. Instead, it recites a variety of ways in which Section 3 makes same-sex marriages "second class marriages." Now, it is undoubtedly true that Section 3 has this effect. But notice what the court goes on to say: "What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution."
I confess to being skeptical that one can, as a matter of principle, determine the "purpose" of a law with any degree of certainty. But let us leave that aside, and assume that it is theoretically possible to determine a law's purpose. What exactly is the rule here? Would it be enough if Section 3's principal purpose were to demean same-sex marriages, even if it didn't really have that effect? What about the other way around - what if a law accidentally had the effect of demeaning same-sex marriages, even though that wasn't its principal purpose? Or does a law have to have both? What if a law does neither? What if a law merely makes a distinction between opposite-sex and same-sex marriages, but manages to do so with neither the purpose nor the effect of demeaning either class?
If the court had simply followed the tiered scrutiny test, none of these questions would arise. Instead, they do. The court never explains the test it is using to make its decision. It never even explains its reasoning. It simply lays out a bunch of statements, and then says, "Somewhere in here is our warrant for holding as we do." What are we supposed to do with that? What is the law?
One might well ask why the court did things this way. We may never know. It may be that in the strictest sense we can't know, any more than we can know why a law was passed. If one were feeling cynical, one might imagine that the court wanted to make a statement on gay marriage without articulating a usable test that would be applied throughout the nation. Yet if that were so, why didn't they simply dismiss for lack of standing? Did they feel like to dismiss both Windsor and Hollingsworth (the Prop. 8 case) without making some sort of statement would be somehow cowardly?
Which brings us to the question of standing. Recall that, from the very first trial, Windsor won, and the government repeatedly urged successive courts that Windsor should win. I am incredulous that, under these circumstances, the court agreed to decide the merits of the case at all.
There is a tendency nowadays to imagine that the Supreme Court is the final arbiter of justice in the land, and the ultimate word on what is the law. This is not true. In fact, Article III of the constitution specifically prohibits the judiciary from issuing what are called "advisory" opinions. In some countries, one can essentially ask the judiciary a hypothetical question, and the judiciary is allowed to answer - to give its legal advice about the query. One can imagine the usefulness of such a situation. However, the constitution prohibits the federal judiciary from doing any such thing. In this country, if one wants mere legal advice from a government official on a constitutional question (e.g., "Hypothetically, what level of scrutiny should be applied to classifications based on sexual orientation?"), one asks the attorney general. The American judiciary is only allowed to decide actual cases. Doing so may require it to state what the law is, but that does not mean that the judicial branch has the power, in general, to state what the law is. First, there must be two parties who disagree over which of them is entitled to redress.
And yet in this case ... where was that? Windsor won. The government agreed that she should win. Where is the disagreement? At every stage of the litigation, the government loudly and forcefully denounced its own cause. Truth be told, the Supreme Court was not allowed to decide this "dispute," but if it wanted to avoid the clarity that the tiered scrutiny analysis would give, it certainly had an easy out.
I do not think that Section 3 was good policy, and I would - in general - be glad to see it gone. But I am deeply disappointed in the way that this all played out. The judiciary ducked its responsibility to say that this whole appeal was an unconstitutional attempt to weasel an advisory opinion out of it, and then issued a confusing muddle of an opinion with a clear result but no clear reasoning or statement of principles (again, if one were of a cynical mind, one might think they didn't want to make their reasoning clear). But the deeper cowardice belongs to the executive branch, which got us into this whole mess by continuing to enforce a law that it believed - as it told everybody who would listen - to be unconstitutional. This is unacceptable. If the executive believes that a law is unlawful, it is supposed to refuse to enforce it, in which case it will never have to defend it in court. If the legislature has a problem with that, the two of them are supposed to fight it out. If the executive believes that a law is lawful, it is supposed to enforce it, and defend it in court. But the executive cannot have it both ways. Either it has the courage of its convictions or it does not. If one were of a cynical mind, one might think the executive wanted the political cache of being an LGBT ally and the political cover of only ceasing to enforce Section 3 after the courts had "agreed" that it was unconstitutional. Cowards.
As I said, I am sure that striking down Section 3 will be remembered as a landmark victory for the cause of equal rights. And I suppose that it is. But I cannot escape the conclusion that it was a victory achieved by the cowardice of two branches of government whose essential reasoning was that the ends justify the means. A marriage regime that is no respecter of sexual orientation is a good end. But the ends do not justify the means.