Wednesday, June 26, 2013

Gay Marriage

I was incredibly and enormously sick yesterday and last night. Like, the sickest I've been in a long, long time. It's weird being that sick. You feel completely helpless, shaking in front of a bathroom mirror, waiting to throw up. Anyway, I'm feeling a bit better now, and since I am avoiding my bar study partner (to avoid infecting him with whatever death I currently possess), I have a little bit of time to write this up. I spent most of this morning lying in bed reading the new gay marriage opinions, and I thought it would be nice to both summarize the gist of them and pull out my favorite quotes. Scalia's dissent on the DOMA opinion may be one of the best he's ever written. If you like clever, passive-aggressive (and often just aggressive-aggressive) argument, take a look at that opinion! Anyway, here goes.

United States v. Windsor (The Defense of Marriage Act Case):

DOMA basically said, at least the part that was struck down, that federal benefits (like Social Security survivor benefits) would only apply to "married" couples, and "married" under DOMA was defined as it's usually been defined, between a man and a woman. The Supreme Court said that this part of the law was unconstitutional. Though significant, I want to ignore the issues with standing because they honestly aren't very interesting. I mean, they are, but not for a blog post.

The majority's argument is difficult to break apart and understand. That is, it makes a lot of vague arguments without really hanging its hat on any one point. There are two(?) main arguments it puts forward:

Federalism: That because a state says a couple is married, the federal government should honor that determination. The opinion goes on an on about how the states are generally regarded as the deciders of domestic relationships and that DOMA acted to override this power by ignoring the state determinations and limiting benefits to non-same-sex-couples. (I find this argument rich; more on this below.)

Discrimination against a certain class of people: That because it treats same-sex couples unequally, it violates equal protection. The Court spends a great deal of time arguing that the purpose(?) of DOMA was to "demean" homosexual couples and open them up to ridicule, to make them second-class citizens. The Court genuinely does not go much, at all, into how the 5th or 14th Amendments should invalidate the law, but there it is. Stuff like "DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others" feels like it was lifted from a gay rights website.

Beyond this, the opinion is pretty sparse. It basically just says that because same-sex couples don't get the same benefits that opposite-sex couples get, and because some states have said they should (in the context of their own states, of course) that DOMA is unconstitutional. Or as Scalia put it: 
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."
What's most absurd about the federalism argument, of course, is that I have no doubt that in a couple of years (or next year), the Supreme Court will strike down various state laws and amendments that deny marriage to same-sex couples. As Alito notes:
To the extent that the Court takes the position that the question of same-sex marriage should be resolved primarily at the state level, I wholeheartedly agree. I hope that the Court will ultimately permit the people of each State to decide this question for themselves. Unless the Court is  willing to allow this to occur, the whiffs of federalism in  the today’s opinion of the Court will soon be scattered to the wind.
In other words, it's not like the Supreme Court is going to respect some state law when it holds the opposite opinion, come a few years. Because it dismissed the Prop 8 decision on standing grounds (more on this below), it can somehow pass this off as valid. Or as Scalia, quite brazenly, puts it:
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.
I think the majority's opinion on this federalism point really is absolute nonsense, and I think they know it. I cannot imagine that they care about federalist principles, especially when the issue comes before them again. Again from Scalia,
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 LawrenceIt 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.
This, I think, is why the opinion was so vague and so poorly argued and cited. It comes across as "you are treating gay people meanly; that's wrong; unconstitutional." This gives them the sort of wiggle room necessary to rule on a case granting a constitutionally protected right to same sex marriage. Also note that the argument on its face is weak. That the federal government defines marriage (through the Congress) for federal benefits has no affect, whatsoever, on how states define marriage. Alito again:
Section 3 does not prevent any State from recognizing same-sex marriage or from extending to same-sex couples any right, privilege, benefit, or obligation stemming from state law. All that §3 does is to define a class of persons to whom federal law extends certain special benefits and upon whom federal law imposes certain special burdens. In these provisions, Congress used marital status as a way of defining this class—in part, I assume, because it viewed marriage as a valuable institution to be fostered and in part because it viewed married couples as comprising a unique type of economic unit that merits special regulatory treatment. Assuming that Congress has the power under the Constitution to  enact the laws affected by §3, Congress has the power to define the category of persons to whom those laws apply.
The more interesting argument, of course, is the equality argument, of which the Court does not spend nearly enough time. It, I daresay, simply begs the question. It ignores or glides over the actual philosophical question (that is, whether gay marriage really is a thing at all) in determining that "discrimination" has taken place. I discuss this in detail here. This, I think, is the reason the majority spends so much time arguing that the purpose of DOMA was to be cruel to homosexuals, to take something away from them. The question, of course, though, is whether there is anything to be taken away. As Alito most insightfully notes,
By asking the Court to strike down DOMA as not satisfying some form of heightened scrutiny, Windsor and the United States are really seeking to have the Court resolve a debate between two competing views of marriage.
This really is of course the only issue that matters, and the Court basically just assumes what it needs to assume to reach the conclusion it reaches. This is a major, major problem. It speaks to a serious problem within the justice system itself, where we expect authorities like the Court to determine right and wrong. They almost always fail, either by avoiding the question or simply assuming the answer.

And there really are a lot of quasi-defamatory remarks leveled against those who voted for DOMA and those who defend traditional marriage. I can't think that there was any other reason to do this but to establish that the purpose of the law was nefarious. Here are some, paraphrased by Scalia:
...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).
This makes it sound like the Court is coming in to save homosexual couples from the cruelty of the federal government in passing DOMA. Or as Alito puts it:
In asking the Court to determine that §3 of DOMA is subject to and violates heightened scrutiny, Windsor and the United States thus ask us to rule that the presence of two members of the opposite sex is as rationally related to marriage as white skin is to voting or a Y-chromosome is to the ability to administer an estate. That is a striking request and one that unelected judges should pause before granting. Acceptance of the argument would cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools.
I address something similar here. The thing that bugs me most about the opinion is that it really doesn't address any of the major gay marriage arguments. It really is just hand-waving and question-begging. The dissenters argue that it should be up to the people (through the states) to determine what marriage is. I personally don't like this (because I think the idea of a state democratically determining something untrue as true is really ridiculous), but I understand the dissents' arguments. It's certainly a more valid position, at least from the perspective of American government.

But what really gets to me is that the Court was answering the question as to what marriage is, but it was just pretending like it wasn't. It's so disingenuous that it makes me lose faith in the entire system. (It's also, as an aside, unclear how this decision will be applied. For example, if a gay couple in Texas takes a weekend trip to Massachusetts to get married, but they reside in Texas at all other times, do they get federal benefits? Remember, the opinion only says that the federal government has to respect the state laws as to whether they are married and are able to receive benefits. But the couple is not married according to their home state, and their home state is under no obligation to recognize the marriage. Do they get to use that non-recognized marriage for benefits?)

This was dismissed on standing. I only put it here to identify the effect it will have on gay marriage as a constitutional right. Because they didn't rule on its merits, it says nothing about the constitutional right to gay marry. The immediate effect is that a ban on gay marriage is unconstitutional for the time being in California. But not anywhere else. Note, though, that if a case does get up to the Supreme Court again, and it rules that such bans are not unconstitutional (something they avoided to do in this opinion), Prop 8 would be revived (assuming it's still on the books there).


  1. Thanks for the fast summary.

    Really, my only surprise here was that Roberts didn't join with the majority. When I was younger, I wanted to be a lawyer - but the expense, the competition, and ultimately the realization of what law really was about (not 'seeking justice' but ... something else, for many people) killed that notion. Probably for the best, for me.

    Ah well.

    1. Considering Kennedy wrote the majority here, I have to assume that if a legitimate constitutional-right-to-gay-marriage case comes before the Court, it will find that such a right does exist. That said, Kennedy does go on and on about the authority of the state to determine the definition of marriage. We'll see, I guess.

      I'm sure you would have made a great lawyer. I love all the constitutional law stuff (as anyone does), but it really is sort of depressing.

  2. Reading the news of this yesterday was very frustrating, to say the least, with the frustration being not just with the Supreme Court, but with the celebrations of the rulings in general. (Being on FaceBook yesterday and reading as my friends wrote inane garbage such as "#samelove" and "#equality!" almost made me throw up...)

    People just do not seem to grasp that whether marriage laws are equal or not depends on what the telos of marriage is taken to be. To simply assert that marriage laws should be "equal" either:

    A.) Betrays an ignorance of the current marriage laws as they stand; that is, if marriage does indeed exist to, say, oversee the responsibilities that attend upon procreation and to provide a child with a mother and a father, then not only would it i.) make sense to restrict "marriage" to two individuals of the same sex, but ii.) the law would also be utterly equal insofar as every individual, be him/her homosexual or otherwise, would have the same amount of rights and restrictions as they pertain to marriage, namely, that an individual (be him/her homosexual or otherwise) can only marry some other individual of the opposite sex (among other restrictions).


    B.) Otherwise amounts to simply begging the question by assuming that marriage merely exists to, say, join/recognize individuals who are lovingly committed to one another.

    I think it is quite clear that the reason why the state has such a compelling interest in marriage is because it is literally tasked with the continuation of society and in stabilizing it. As such, there is not a more important societal function. One may, of course, think that marriage does not exist for this purpose. Indeed, one might be convinced that marriage really exists to, say, join/recognize individuals who are lovingly committed to one another. But then, what interest would the state have in subsidizing relationships simply because two people have fuzzy feelings for one another, or to recognize that two people sodomize? Not much, I submit. So the supporter of same-sex marriage must, as I see it, convince me of two things: (i) that their position is coherent; and (ii) that the purpose of marriage as they envision it is of compelling interest to the state and public good. I've seen plenty of reasons to think that neither is true and next to none to the contrary.

    1. Justice Alito, in his dissent, wrote about this in pretty decent detail. I'm going to make a post on that now. But yes, I certainly agree. It's entirely a philosophical question, and there's a correct and incorrect answer to it. That is, whether "gay marriage" makes any sort of coherent sense. I submit that it doesn't, but that much it obvious.

  3. When it comes to the whole gay marriage debacle, the only solution I see that is fair in all respects (at least to the sensibilities of the secular world) is to simply for the state to stop recognizing all marriages both gay and straight and relinquish the recognition of marriages to the churches, whichever church it might be.

    I understand the argument that the state should recognize heterosexual marriages because of the benefit to society, but unless there is a complete 180 in our culture's sensibility to power words such as equality, such argument will not gain traction among the masses.

    Also, the likes of Maggie Gallagher and Brian Brown are beyond their prime in trying to address the case for traditional marriage to the younger generation (which is the force behind the rapid acceptance of "gay marraige.")
    Their counter cultural warriors are probably more suited for the task now, but certainly not them.

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