Today has yielded what we have come to expect from the month of June: interesting and important rulings in cases brought before the Supreme Court of the United States.
One of the rulings was on the federal Defense of Marriage Act (DOMA), enacted by Congress in 1996 and signed into law by President Bill Clinton. Section 3 of the Act declared that many aspects of federal law that applied to married couples would apply only to opposite-sex couples. Same-sex couples who were married in states granting marriage licenses to such couples would not be recognized as married with respect to many provisions of federal law for which marital status is determinative, including taxes and various federal benefits.
An avid student of constitutional law for many years, I was fascinated by this case. On the surface it seemed pretty simple. Two couples married in New York, one heterosexual and the other homosexual, would be treated differently under federal law solely because of their sexual orientation. Surely there must be something wrong with that. The Fourteenth Amendment to the United States Constitution says that no state shall "deny to any person within its jurisdiction the equal protection of the laws."
There is a judicial principle called the Doctrine of Incorporation that has been used to apply Constitutional protections written in relation to Congress to state governments (notably so for various protections in the Bill of Rights), and in reverse it has been used to apply restrictions on state governments (especially those in the 14th Amendment) to the federal government. Thus the Equal Protection requirement of the 14th Amendment applies to the federal government, and this section of DOMA violates it.
But then I started reading the Court's opinion and was reminded that among the questions the Court must always consider are whether it has jurisdiction and whether the litigants have standing. So, to make up an absurd example, if on my commute to work every day I pass a house painted orange with purple polka dots, I may not file suit against the owner and expect the Supreme Court to accept the case. My opinion that the house is ugly does not give me standing, and the Court does not have jurisdiction, because if the appearance of the house violates anything besides my esthetic sensibilities, it would likely be a city ordinance.
The Court spent several pages on this question, because it was not so obvious. You see, the plaintiff claimed standing because the federal government required the payment of estate taxes by failing to recognize a marriage recognized by the state of New York. Had the marriage been recognized, the plaintiff would have been exempted as a surviving spouse. The plaintiff paid the tax, thereby sustaining an "injury," and then asked the IRS to refund the tax because refusal to recognize the marriage was wrong. Lower courts agreed and ordered the IRS to refund the tax. The federal government agreed to do so. The case wound up before the Supreme Court despite the fact that lower courts had ruled in favor of the plaintiff, and the federal government was not arguing that DOMA should be upheld.
So the Supreme Court has issued a ruling in a case in which the litigants before it were in agreement, and it did so by claiming that the case was sufficiently important that it should issue a ruling on the constitutional question even though the matter of damages had already been settled. As Antonin Scalia explained in his dissent, the rationale used as the basis for so doing is most peculiar, and it raises questions about whether the Court might begin ruling on constitutional issues without having before it a case in which the issues are raised in a concrete circumstance.
This gives me a headache. Sometimes these questions seem straightforward. Let's say I think the other part of DOMA, which says states don't have to recognize marriage licenses granted to same-sex couples in other states, is wrong. I cannot challenge that law in the federal courts, because I lack standing. I haven't been harmed by the law. If I were a member of a same-sex couple who married in Massachusetts and then moved to Alabama, and Alabama's refusal to recognize the marriage caused some tangible harm, I could sue. But if a federal court ordered Alabama to rectify the harm (without nullifying Alabama's broader statutory refusal to recognize same-sex marriages from elsewhere), and Alabama agreed to comply with the order, I would not have standing to take my case further up in the federal court system.
Lower federal courts often try to resolve cases without ruling on constitutional issues, and cases that appear to involve constitutional issues typically don't reach the Supreme Court unless they get there because the constitutional issue must be addressed to resolve the case. (Disclaimer: I am not a constitutional lawyer, nor do I play one on TV. This is just the impression I have formed.)
So, the bottom line is that I think the Court's ruling is correct, and even if Scalia is right that the Court had no business issuing a ruling in this case, it is logical to surmise that another case would have come along eventually in which the Court would have properly issued an opinion. So why now? Well, the Court argued that if it waited for another case, many people would have been harmed by DOMA's Section 3 in the meantime. That seems a sound practical argument. But I can't help thinking, intellectually, that Scalia's argument about ruling on constitutional issues only when requisite conditions have been met is correct. And so I have a headache.
And then the headache got worse when I started pondering the ruling on California's Proposition #8.
The California Supreme Court said the state constitution required, as a matter of equal protection, that the Commonwealth allow same-sex couples to marry. The people of California (some of them, that is), disagreed and said if the state Supreme Court insisted on interpreting the constitution that way, they would amend the constitution to clarify that "marriage" was for one man and one woman. The referendum to amend the state constitution went on the ballot as Proposition 8 and was approved. In the meantime, some marriage licenses had been issued to same-sex couples. Opponents of Proposition 8 filed suit. The California Supreme Court said the amendment was valid. All of the legal protections typical of marriage were left in place by Proposition 8, which had no effect on domestic partnerships recognized under state law. And marriage licenses issued between the original ruling and the passage of Prop 8 were "grandfathered." The one thing clearly denied same-sex couples, however, was the label "married." And that was grounds aplenty for them to fight. Subsequently, federal courts invalidated Prop 8, saying the voters could not, by amending the constitution, take away a right that had previously existed without a compelling reason for doing so. (Never mind the question of whether that right existed before the California Supreme Court said it did or that that same Court had upheld Prop 8.)
So now the proponents of Prop 8 want to challenge the decision of the lower federal courts. And the Supreme Court says no. Why? They - the proponents of Prop 8 - have not been harmed by its having been struck down, and so they lack standing. The U.S. Supreme Court thus lets stand the lower federal court rulings, Prop 8 remains invalidated, and California can once again issue marriage licenses to same-sex couples.
In one case, the Supreme Court says litigants who have not been harmed lack standing. In the other case, the Court says the litigant has standing, and the Court has a basis for issuing an important ruling, even though the claimed harm has been addressed by a lower court ruling. To add an interesting wrinkle, the IRS had agreed to comply but had never actually given the plaintiff her money back, and the Court said if she had gotten her refund, the answer to the question of standing might have been different. But instead of just telling the IRS to give her back her money.... Well, you already know the rest of the story.
In both cases there were questions of standing and jurisdiction. In both cases I am content with the outcome. But the inconsistency of the reasoning gives me a headache. Scalia's opinions were the same, saying the Court should not issue a ruling in either case. The consistency of his argument is compelling. Oh, and if you've never read any of his opinions, his opinion in the DOMA case is worth the read. Even though I like the Court's ruling, his dissent is much better written and more logical than the majority opinion, and - frankly - entertaining. He never disappoints me.
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