Note on this Series: This is the first part in a four-part series analyzing the Supreme Court of the United States‘ (“the Court”) decisions released on the week of June 24, 2013, affecting minority rights – the constitutionality of Section 3 of DOMA, of Sections 4 and 5 of the Voting Rights Act of 1965 (“VRA”), of California Proposition 8, and of affirmative action programs in public institutions of higher learning.
Note on Citations: Throughout the post, I will cite to pages of the Court’s slip opinion, which you can find below. Because the decision has yet to be codified in the United States Reports, the slip opinion is the only official version of the opinion available.
Note on the Text: The text of the the Court’s decision on DOMA can be found in PDF format here. The controlling majority opinion was written by Justice Anthony Kennedy, and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. There are a number of dissenting opinions written or joined by Chief Justice John Roberts, and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.
The landmark decision released June 26 in United States v. Windsor, 570 U.S. __ (2013) is one of the defining civil rights opinions of our generation. The Court ruled that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7 (2006), a 1996 law defining marriage as between one man and one woman for the purpose of over 1,000 Federal benefits, is unconstitutional. Already in the past hours and days many have written about the merits, and how Justice Anthony Kennedy‘s strong defense of equality has irked many conservatives, including perennially mean spirited Justice Antonin “Nino” Scalia (I should note that I have a great deal of respect for Mr. Scalia despite his fastidiousness in some topics, like this one; he is principled for the most part, and is right on some topics, such as the Fourth Amendment to the Constitution–but that’s for another day). I will give a short recap of my view of the decision as well. But I will also take a quick look at an issue that many in the legal community thought would doom Windsor–standing. In order to get to even be able to consider the merits of the case–that is, whether DOMA violated the Equal Protection Clause of the Fifth Amendment to the Constitution–both the person bringing the law suit and the person defending it have to have standing.
Edith Windsor, the plaintiff in the seminal Supreme Court decision bearing her name
Before addressing the legal rulings and implications of the case, the underlying factual background is necessary. Edith Windsor, who brought the lawsuit, was in a long term, committed homosexual relationship from 1963 until 2009, when her partner, Thea Spyer passed away. See Windsor at 2. Worried about Ms. Spyer’s health, the couple had gone to Ontario, Canada, to marry in 2007, a marriage which is recognized under New York law. See id. at 1. Upon Ms. Spyer’s death, she left her estate to Ms. Windsor, who applied for spousal benefits in estate taxes, which was denied by the IRS because Ms. Winsdor’s marriage was not recognized by the Federal government due to DOMA. See id. at 2-3. Ms. Windsor then tried to get the money—over USD $363,000—back as a tax refund, and was also denied. See id. at 3 She then sued the United States in the United States District Court for the Southern District of New York (“SDNY”) in an attempt to get her refund, arguing that DOMA violates the Equal Protection Clause of the Fifth Amendment. See id. at 1.
During the litigation at the SDNY, the Attorney General of the United States informed the Speaker of the House of Representatives, as required by law, 28 U.S.C. § 530D (2006), that the Obama Administration would no longer defend DOMA in the courts. See id. at 3. In the letter, the Attorney General said that the administration concluded that a higher standard of scrutiny was due to homosexual individuals due to, in part, a history of discrimination. See id. Nevertheless, the administration decided to continue enforcing the law–meaning that Ms. Windsor would not be getting her money back. See id. at 4. As soon as this occurred, a group of Republican members of the House decided to hire outside counsel to continue defending the law, and formed an organization called the Bipartisan Legal Advisory Group (“BLAG”). See id. The United States did not oppose BLAG’s entrance, but the SDNY decided to only admit BLAG as an “interested party” under Federal Rule of Civil Procedure 24(a)(2). See id. This organization led the defense of the law up to the arguments and briefs in front of the Supreme Court.
The current Justices of the Supreme Court
Back, from left: Sonia Sotomayor, Stephen Breyer, Samuel Alito, and Elena Kagan
Front, from left: Clarence Thomas, Atonin Scalia, John Roberts, Anthony Kennedy, and Ruth Bader Ginsburg
Standing is a doctrine rooted in Article III of the Constitution that requires there be an injury in fact to parties to a lawsuit. The Court in this case divides its analysis into two parts: (1) the actual Article III requirements, and (2) “prudential limits” on the exercise of those Article III requirements, which are “essentially matters of judicial self-governance.” See id. at 6-7 (internal quotations and citations omitted). While most Court watchers had expected that it would have to grant, or not grant, BLAG standing to defend the law, the Court avoided that path entirely. In short, the Court did “not decide whether BLAG would have standing to challenge the District Court’s ruling and its affirmance in the Court of Appeals on BLAG’s own authority,” id. at 12, because the United States retained standing despite agreeing with Mr. Windsor’s position that DOMA is unconstitutional. While some had argued that the United States lost standing to defend the suit when it changed its position and agreed with Ms. Windsor on the constitutionality of DOMA, the Court instead said that the government still had standing because the injury in fact to Ms. Windsor, that is, not getting her money back, “was concrete, persisting, and unredressed,” regardless of whether the government agreed with her position or not. See id. at 6.
The Court went on to consider these prudential considerations on the exercise of Article III requirements. See id. at 7. Such limits existed to “protect the courts from decid[ing] abstract questions of wide public significance even [when] other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.” Id. (international quotations and citations omitted). Using these considerations, the Court concluded that because the United States would be harmed if the courts decided against it (that it, it would have to pay Ms. Windsor, something it would not do without a court order), it had standing. See id. at 8. “That the Executive may welcome this order to pay the refund if it is accompanied by the constitutional ruling it wants does not eliminate the injury to the national Treasury if payment is made, or to the taxpayer if it is not.” Id. While “[i]t is true that [a] party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it . . . [the] rule does not have its source in the jurisdictional limitations of Art[icle] III. In an appropriate case, appeal may be permitted . . . at the behest of the party who has prevailed on the merits, so long as that party retains a stake in the appeal satisfying the requirements of Art. III.” Id. at 9. Finally, it claimed that the side arguing for Section 3 of DOMA to be upheld was adequately represented by BLAG, ensuring that the courts got a good chance to hear the other side.
By taking this route, the Court managed to not expand standing, as many thought it would have to, in order to reach the merits. This is important, because an expansion of standing rights could lead to more people being able to sue about more things, something that our already overwhelmed Federal court system shouldn’t have to handle. If the Court had granted BLAG standing, it could have said that individual members of Congress had standing to challenge any law. That theory, known as generalized congressional member standing, would have been a pretty large, yet limited, expansion of the standing doctrine. Instead, by holding that even after the United States stopped defending the law the controversy continued being between it and Ms. Windsor because either the Treasury would be injured by paying the money back to Ms. Windsor, or Ms. Windsor would be injured by not getting her money, it avoided a potentially difficult standing issue. This is actually a rather ingenious way of moving to the merits, and within legal circles I think Mr. Kennedy will be lauded for it.
Having decided that both Article III’s requirements and the prudential considerations were met, the Court moved on to the merits. Section 3 of DOMA, codified at 1 U.S.C. § 7, states in its entirety that “[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” Ms. Windsor argued that it violated the Equal Protection Clause of the Fifth Amendment. The Court agreed. See Windsor at 26.
Generally, “[s]tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons, but, subject to those guarantees, regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” Id. at 16 (internal quotations and citations omitted). This basic tenant of American law is not upended by this decision. Instead, in what is a passionate opinion, Justice Kennedy says that those basic “constitutional rights of persons” are being violated by the Federal government by not affording them equal rights. See id. at 21-22. Moreover, Congress’ purpose in passing DOMA is actually to “to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws,” id. (internal quotations and citations omitted), something that is not in line with federalism.
What is unclear, however, is what standard of scrutiny the Court used in deciding the case. The Equal Protection Clauses of the Fifth and Fourteenth Amendments, the former which applies to the Federal government and the latter which applies to the States, are used to decide whether laws discriminating on some basis are constitutional. When deciding a case under the Equal Protection Clauses, there were traditionally two main levels of scrutiny: rational basis and strict scrutiny. The Court added an intermediate level of scrutiny, known as intermediate scrutiny, to decide some issues including laws that discriminate on the basis of sex. Since then the Court has used some heightened form of rational basis (which some have described as rational basis “with bite”)—including in the seminal case of Lawrence v. Texas, 539 U.S. 558 (2003), in which Justice Kennedy, writing for the Court, struck down laws criminalizing sodomy.
Strict scrutiny is the toughest form of review, and is applied to laws that discriminate in some way on the basis of race (and others). No law to which strict scrutiny has been applied has survived, except for the infamous Korematsu v. United States, 323 U.S. 214 (1944), in which the Court upheld concentration camps that had been set up by the Federal government for Japanese-Americans during World War II. In order for a law to survive strict scrutiny, there must be (1) a compelling governmental interest, that is (2) narrowly tailored to serve that interest, and (3) the law is the least restrictive means for achieving that interest. Rational basis review is the complete opposite. The law only needs to be (1) rationally related to a (2) legitimate government interest; in short, basically any law survives rational basis.
In this case, it is not clear what level of scrutiny was used by Mr. Kennedy in his majority decision. It is relatively safe to say he did not truly use rational basis review, and he does not seem to go so far as to use intermediate scrutiny (which the United States Court of Appeals for the Second Circuit used in its Windsor decision). On page 19 of the opinion, Mr. Kennedy says that “discriminations of an unusual character suggest careful consideration” when deciding if they violate the constitution. Windsor at 19 (internal quotations and citations omitted). This could suggest the so called rational basis “with bite” standard used in Lawrence. This is my personal interpretation. Mr. Kennedy didn’t want to go as far as calling for intermediate scrutiny, but wanted to make clear that discrimination that comes from “a bare congressional desire to harm a politically unpopular group,” id. at 20, cannot simply be confined to rational basis review. Others have argued that “careful consideration” is its own standard entirely, or that it may be an additional step used in considering certain cases after applying one of the three traditional standards of scrutiny. I think this may be complicating things too much, and that, because rational basis “with bite” doesn’t officially exist, the Court found a way of expressing that here.
Ideally, Mr. Kennedy would have just applied intermediate scrutiny to laws discriminating on the basis of sexual orientation. This would have been clear cut, easy, and afforded gays and lesbians throughout the United States the constitutional level of protection they deserve. He didn’t do that. Instead, the legal community will probably be fumbling about in the dark for a while the courts figure out what this “careful consideration” standard means. For real people (yes, we lawyers and law students aren’t real people!) it doesn’t matter though—the real world impact this decision has on the lives of countless homosexuals is already being felt across the country right now.
Finally, there is also the point that this does not take gay rights all the way when it comes to marriage. The Court here stopped well short of requiring that all 50 states and the District of Columbia allows gays and lesbians to marry. On the contrary, Mr. Kennedy explicitly states that the decision of whether to grant homosexuals the right to marry remains with the states (or as The Onion ably and mockingly put it, in the “able hands” of the states). This means that homosexuals in 37 states are still not treated equally under the law. Nevertheless, this is a substantial step forward in ensuring that all Americans everywhere have the same natural and constitutional rights.
The dissents are fractured. Perhaps the main dissent is that written by Mr. Scalia, and joined by Mr. Thomas, and in part by Mr. Roberts. Mr. Alito writes a dissent joined by Mr. Thomas, and Mr. Roberts writes his own separate dissent. It is interesting to note that while Mr. Scalia’s opinion is rife with attacks, the Chief Justice does not join in those parts. Maybe Mr. Roberts’ opinions are changing. Who knows. The part he joins, Part I, is only about standing, and how in this case the majority’s rules on standing are wrong.
In short, this is a major victory for the gay community, and for all those who believe in equal civil and political rights for all. I for one am cheered by an opinion I was not sure we would get. I have no doubt that Windsor will in later years be mentioned in the same breath as Loving v. Virginia, 388 U.S. 1 (1967) (striking down bans on interracial marriage), and Brown v. Board of Education, 347 U.S. 483 (1954) (striking down the notion of separate but equal), as cases that advanced the cause of freedom and equality for all. Just as interracial marriage has come to be considered normal, so will gay marriage. As remarkable as it may seem to my generation, it was less than 50 years ago that a large number of Americans believed that it was God’s will that Blacks and Whites remain separate. The trial judge in Loving infamously said that “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” One day statements such as that about gay marriage will be seen with the same contempt and incredulousness that we see this one today. Whether opponents of marriage equality like it or not, that day is coming within our lifetimes. And amen to that.
A View 