4. The majority
in U.S. v. Windsor (no. 12-307, October Term 2012) indisputably came to
the right conclusion, in invalidating the federal Defense of Marriage Act, but
for the wrong reasons.
After hearing about the initial arguments in Windsor,
I came to the immediate conclusion that the case would be decided 5 to 4 in
favor of invalidating Section 3 of the Defense of Marriage Act (DOMA),
defining, for purposes of all federal statutes and derived regulations,
marriage as the union of one man and one woman. I stated my conclusion in my previous rant on Marriage as a
Constitutional Issue and a Matter of Public Policy. That said, upon actually reading the majority decision that was
render by Justice Kennedy, it seems clearer that the majority in the case
allowed itself too much liberty in engaging in the agenda of marriage equality
to produce a good piece of federal jurisprudence. While I agree with the invalidation of DOMA’s Section 3, I
disagree completely with the majority’s approach to finding it unconstitutional.
Elaborating
on the case itself, the respondent was a partner to a same-sex union,
recognized as a marriage by the state of New York, whose spouse had died,
leaving her with an inheritance of property.
Under federal legislation governing estate taxes, spouses are exempt
from taxation of property inherited with the death of one partner. Under the influence of DOMA’s section 3,
however, such exemptions apply only to opposite-sex couples. Ms. Windsor was assessed the full value of
the estate tax for her late partner’s property. Curiously, on suing the Internal Revenue Service to recover a
refund on her estate tax assessment, Ms. Windsor won a victory in both
federal district and circuit courts. In
the process, the Obama administration announced that the U.S. Justice
Department would no longer defend the constitutionality of DOMA’s
section 3. As a consequence, the House
of Representative’s Bipartisan Legal Advisory Group (BLAG) took up the
challenge of waging a defense of DOMA at the district and circuit level in Windsor
and other cases, claiming standing to defend the act in lieu of the Executive
Branch. As such, a preliminary
jurisdictional question faced the Court in Windsor: if the Justice
Department would not defend the constitutionality of DOMA, did BLAG enjoy
standing to file suit in federal court to defend the act?
The
majority opinion, thus, addresses two points.
First, it confers legal standing on BLAG to argue DOMA, thus enabling it
to render judgment in the case rather than dismissing the case as inconsistent
with Article III restrictions on the Court’s jurisdiction. This decision is important, in and of
itself, because, as Justice Kennedy notes, numerous potential controversies
concerning DOMA section 3, in the enforcement of other acts of Congress and
derived administrative regulations, would have remained unresolved if the Court
had not granted Certiorari, permitting BLAG to stand in for the Executive
branch. Second, it addresses the
constitutionality of DOMA section 3, rendering the provision
unconstitutional. Agreeing with both
of these judgments on the part of the majority, I think it erred in its
reasoning in the latter.
Specifically, Justice Kennedy’s
opinion holds that Congress violates the equal protection clause of the
Fourteenth Amendment through its “reverse” incorporation into the due process
clause of the Fifth Amendment against Congressional action. In defending this proposition, Kennedy cites, among other things,
the precedent in Loving v. Virginia (388 U.S. 1 (1967)) and its
transformation of marriage as a fundamental right guaranteed by the U.S.
Constitution. He, simultaneously,
recognizes, at multiple points, that the “definition of marriage is the
foundation of the State’s broader authority to regulate the subject of domestic
relations” (see U.S. v. Windsor, 17, at: http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf)
and recognizes multiple cases of federal judicial precedence in which the terms
of marriage have been regarded as a power exclusively reserved to the
states. In this manner, it would have
(and should have) been obvious to recognize that the issue of marriage
implicated federalism. As such, the
majority could have decided this case by simply stating that DOMA contradicted
a principle, established by U.S. Constitutional history, that Congress is not
empowered through the U.S. Constitution to define marriage – that power is exclusively
reserved to the states through the Tenth Amendment.
In fact,
Justice Kennedy and the concurring justices in the majority opinion do not
do this. Rather, Kennedy dismisses
the federal question altogether in order to argue that the intention of
Congress in passing the law was to intentionally injure a specific class
of individuals unified in same-sex marriages, sanctified by individual states,
for no legitimate public purpose, depriving these individuals of equal
protection under the law. While I
cannot contest that the majority is correct in pointing out, as a matter of
principle, that same-sex couples were deprived of equal protection by DOMA, in
my view this is beside the point.
Congress lacked the authority under the U.S. Constitution to pass DOMA
in the first place, violating of the Tenth Amendment by assuming authorities
reserved to the states. Beyond the
“necessary and proper” assumption of authority by Congress to enact provisions
in regard to taxation and entitlement programs, specifying the privileges,
immunities, and responsibilities under specific acts of legislation attendant
to married couples, Congress lacks any constitutional capacity under Article I
to say anything pertinent about the institution of marriage or the
parties capable of entering into the institution. Marriage is entirely the business of state legislatures, the
state constitutions by which they are established, and the sovereign democratic
polities in individual states that confer force and legitimacy to both through
their collective acts of consent.
It is apparent to me that the only reason for the majority opinion to render a decision of this kind, on these grounds, is to expand the interpretation of marriage as a fundamental right under the U.S. Constitution in Loving to same-sex marriages, an interpretation that I strongly disagree with as a defender of both federalism and democratic self-rule by states. If same-sex marriage is an institution worth legalizing, and I do believe that it is, then each state should have the freedom from federal legislative or judicial interference to legalize it through state legislative enactment or popular referendum. Just as Congress has no authority under the Constitution to define marriage for individual states through its capacity to confer benefits on married couples of a specific, opposite-sex composition, neither does the federal judiciary have the authority to invent a fundamental right to marriage in the Fourteenth Amendment, either to invalidate miscegenation laws (i.e. the Loving decision) or to impose marriage equality for same-sex and opposite-sex couples on a national scale.
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