I'm wondering if we're living in this new world where the Attorney General can simply decide: yeah, it's unconstitutional, but it's not so unconstitutional that I'm not willing to enforce it. If we're in this new world, I don't want these cases like this to come before this court all the time. And I think they will come all the time if that's the new regime in the Justice Department that we're dealing with.
As the federal Defense of Marriage Act (DOMA) was being argued before the court on March 27, Justice Scalia interrupted to make the statement above, protesting that the Supreme Court wasn’t chopped liver when it comes to deciding which laws are constitutional and which aren’t. But when the executive branch effectively imposes a post facto veto on laws passed by prior legislatures by deciding which to enforce and which not to defend in court challenges, the President, not the court, is deciding constitutionality. Obama and Attorney General Eric Holder did this in 2011 by announcing that they would no longer defend the 1996 DOMA because they believed it was invalid under the US Constitution.
California Attorney General Jerry Brown and Governor Arnold Schwarzenegger also unilaterally vetoed both the law and their state’s Supreme Court by refusing to defend Prop 8 in federal court. Therefore, ProtectMarriage.com led by Dennis Hollingsworth, a former state senator had to take up the defense when the AG and Governor repudiated their oaths to uphold the state’s constitution. When Obama and his Attorney General refused to defend DOMA, the House of Representatives likewise took on the task, hiring Paul Clement to represent them in the case.
Last week my blog was devoted to the Hollingsworth case and California’s Proposition 8 constitutional amendment defining marriage as a union of one man and one woman. Upheld by the California Supreme Court, Hollingsworth entered the federal court system and ended up in a March argument before the US Supreme Court (SCOTUS.) This week’s blog is devoted to another same sex marriage case, US v. Windsor, also known as the DOMA case. The two cases are quite different and only casually related to same sex marriage.
The case against DOMA was brought by Edith Windsor who lived with her lesbian partner, Thea Spyer for 40 years in New York. Spyer developed multiple sclerosis which gradually paralyzed her. When told she had a year to live, the pair traveled to Canada in 2007 to marry. Spyer lived two more years before dying in 2009 and leaving her estate to Windsor. Because DOMA defined marriage as a union between one man and one woman for the purposes of federal law, Windsor was not eligible for the spousal inheritance tax deduction and was required to pay $363,000 to the IRS. New York did not recognize same sex marriage until 2011. Therefore, since Spyer died in 2009, Windsor would have been liable for the taxes she paid even if DOMA had not existed because the IRS would likely have relied on New York’s definition of marriage.
Nevertheless, Windsor filed suit in federal court asking recognition of her Canadian marriage. The federal district court in New York agreed with Windsor and held that DOMA was unconstitutional. The US 2nd Circuit Court of Appeals affirmed the lower court in a 2-1 decision and struck down DOMA. Although a number of same sex marriage DOMA cases have been appealed to SCOTUS, this one may have been accepted because it involves a foreign marriage.
As I wrote in last week’s blog, marriage is a state issue. Nowhere in the US Constitution is the word “marriage” found. Reading the Constitution’s enumerated powers and prohibitions gives a modern reader insight into the abuses of government that the Framers had witnessed and intended to limit. Because the institution of marriage and society’s understanding of its form was so ingrained at the time the Constitution was written, the Framers saw no need to include language limiting or defining it. Was there a right to marry in 18th century America? Absolutely. In what form? One man and one woman. Nothing else needed to be said.
The concept of federalism is that states cannot make laws that affect other states. So when a Hawaiian same sex marriage case worked its way to the state Supreme Court in 1996, that court said that the right of same sex marriage was not granted under the privacy provisions of the Hawaii state constitution but the equal protection provision of the constitution was violated by denying marriage based on sex. In other words, it was appealed on the wrong basis. The case was remanded to the lower court to tidy it up.
Congress reacted to the potential redefinition of marriage in Hawaii by proposing the misleadingly-named Defense of Marriage Act (DOMA), preempting the nationalization of same sex marriage. Same sex couples, therefore, could not travel to Hawaii to marry and have their marriage recognized by their home state in reliance on the Full Faith and Credit Clause of Article IV, Section 1 of the US Constitution which says:
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
The badly-named DOMA doesn’t prevent states from defining marriage. It prevents them from appropriating the US Constitution to force other states to recognize their definition, which would disenfranchise the citizens of other states.
Federalism is about dual sovereignty. States are sovereign in their domain, which includes laws governing marriage. In addition to defining what marriage is, states define who can participate in marriage – how old you must be to get married if you are not yet an adult, whose permission you must get to marry if below a prescribed age, and how close relatives (e.g., brothers and sisters, first cousins, second cousins) can marry without committing incest. These are issues of community interest, not national interest.
The federal government is sovereign in its domain. This means the states can’t tell the federal government to extend federal marital benefits based on the state’s definition of marriage. For example, regardless of what the state calls legal separation, people who are married but separated cannot file a joint federal tax return. A state may recognize its citizen’s marriage to a foreigner, but if that person is not resident in this country, the citizen must file a federal tax return as a single person. In order to claim federal Social Security survivor benefits, the survivor must be one sex and the deceased the opposite sex. Edith Windsor was denied the spousal deduction because theirs was a same sex marriage which DOMA disqualified for federal tax benefits. However, New York did not recognize their marriage either at the time of Spyer’s death.
As the federal Defense of Marriage Act (DOMA) was being argued before the court on March 27, Justice Scalia interrupted to make the statement above, protesting that the Supreme Court wasn’t chopped liver when it comes to deciding which laws are constitutional and which aren’t. But when the executive branch effectively imposes a post facto veto on laws passed by prior legislatures by deciding which to enforce and which not to defend in court challenges, the President, not the court, is deciding constitutionality. Obama and Attorney General Eric Holder did this in 2011 by announcing that they would no longer defend the 1996 DOMA because they believed it was invalid under the US Constitution.
California Attorney General Jerry Brown and Governor Arnold Schwarzenegger also unilaterally vetoed both the law and their state’s Supreme Court by refusing to defend Prop 8 in federal court. Therefore, ProtectMarriage.com led by Dennis Hollingsworth, a former state senator had to take up the defense when the AG and Governor repudiated their oaths to uphold the state’s constitution. When Obama and his Attorney General refused to defend DOMA, the House of Representatives likewise took on the task, hiring Paul Clement to represent them in the case.
Last week my blog was devoted to the Hollingsworth case and California’s Proposition 8 constitutional amendment defining marriage as a union of one man and one woman. Upheld by the California Supreme Court, Hollingsworth entered the federal court system and ended up in a March argument before the US Supreme Court (SCOTUS.) This week’s blog is devoted to another same sex marriage case, US v. Windsor, also known as the DOMA case. The two cases are quite different and only casually related to same sex marriage.
The case against DOMA was brought by Edith Windsor who lived with her lesbian partner, Thea Spyer for 40 years in New York. Spyer developed multiple sclerosis which gradually paralyzed her. When told she had a year to live, the pair traveled to Canada in 2007 to marry. Spyer lived two more years before dying in 2009 and leaving her estate to Windsor. Because DOMA defined marriage as a union between one man and one woman for the purposes of federal law, Windsor was not eligible for the spousal inheritance tax deduction and was required to pay $363,000 to the IRS. New York did not recognize same sex marriage until 2011. Therefore, since Spyer died in 2009, Windsor would have been liable for the taxes she paid even if DOMA had not existed because the IRS would likely have relied on New York’s definition of marriage.
Nevertheless, Windsor filed suit in federal court asking recognition of her Canadian marriage. The federal district court in New York agreed with Windsor and held that DOMA was unconstitutional. The US 2nd Circuit Court of Appeals affirmed the lower court in a 2-1 decision and struck down DOMA. Although a number of same sex marriage DOMA cases have been appealed to SCOTUS, this one may have been accepted because it involves a foreign marriage.
As I wrote in last week’s blog, marriage is a state issue. Nowhere in the US Constitution is the word “marriage” found. Reading the Constitution’s enumerated powers and prohibitions gives a modern reader insight into the abuses of government that the Framers had witnessed and intended to limit. Because the institution of marriage and society’s understanding of its form was so ingrained at the time the Constitution was written, the Framers saw no need to include language limiting or defining it. Was there a right to marry in 18th century America? Absolutely. In what form? One man and one woman. Nothing else needed to be said.
The concept of federalism is that states cannot make laws that affect other states. So when a Hawaiian same sex marriage case worked its way to the state Supreme Court in 1996, that court said that the right of same sex marriage was not granted under the privacy provisions of the Hawaii state constitution but the equal protection provision of the constitution was violated by denying marriage based on sex. In other words, it was appealed on the wrong basis. The case was remanded to the lower court to tidy it up.
Congress reacted to the potential redefinition of marriage in Hawaii by proposing the misleadingly-named Defense of Marriage Act (DOMA), preempting the nationalization of same sex marriage. Same sex couples, therefore, could not travel to Hawaii to marry and have their marriage recognized by their home state in reliance on the Full Faith and Credit Clause of Article IV, Section 1 of the US Constitution which says:
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
The badly-named DOMA doesn’t prevent states from defining marriage. It prevents them from appropriating the US Constitution to force other states to recognize their definition, which would disenfranchise the citizens of other states.
Federalism is about dual sovereignty. States are sovereign in their domain, which includes laws governing marriage. In addition to defining what marriage is, states define who can participate in marriage – how old you must be to get married if you are not yet an adult, whose permission you must get to marry if below a prescribed age, and how close relatives (e.g., brothers and sisters, first cousins, second cousins) can marry without committing incest. These are issues of community interest, not national interest.
The federal government is sovereign in its domain. This means the states can’t tell the federal government to extend federal marital benefits based on the state’s definition of marriage. For example, regardless of what the state calls legal separation, people who are married but separated cannot file a joint federal tax return. A state may recognize its citizen’s marriage to a foreigner, but if that person is not resident in this country, the citizen must file a federal tax return as a single person. In order to claim federal Social Security survivor benefits, the survivor must be one sex and the deceased the opposite sex. Edith Windsor was denied the spousal deduction because theirs was a same sex marriage which DOMA disqualified for federal tax benefits. However, New York did not recognize their marriage either at the time of Spyer’s death.
In his argument before SCOTUS, the lawyer for the House of Representatives correctly explained that DOMA didn’t define marriage for the states or the nation. It defined marriage for the application of federal law, such as in determining Social Security benefits. Why was this an issue? Because there are about 1,100 provisions of federal laws that affect married people. Most of those laws don’t define marriage and therefore rely on the DOMA definition. Those that do define marriage ignore the definition of it by states.
Under the symmetry of federalism, a DOMA definition makes sense because state and federal governments are separate domains. Forty-one states have a traditional definition of marriage; nine have non-traditional definitions. Even if all 50 states allowed same sex marriage to be legal, the purpose of DOMA wouldn’t compel the federal definition to change because traditional marriages would continue to be practiced alongside same sex marriages. But even if DOMA recognized same sex marriage for the purpose of applying federal benefits, it wouldn’t matter if all 50 states recognized only the traditional definition of marriage. DOMA could be modified to recognize both same sex unions and opposite sex marriages in determining access to federal benefits. Neither the state nor federal government restricts the other’s right to define marriage for their own purposes. US v. Windsor is not about same sex marriage. It’s about access to federal benefits.
DOMA is statutory law that has two major sections. Section 2 says that if any state defines marriage expansively beyond one man and one woman, other states individually have the right to decide if they will recognize non-traditional marriages. Since the Constitution is silent on marriage, DOMA Section 2 prevents the Full Faith and Credit Clause of the Constitution from being hijacked to nationalize same sex marriage.
DOMA Section 3 says that for purposes of federal law and federal programs, marriage is defined as “a legal union between one man and one woman as husband and wife.” This definition could change or be expanded in the future if the federal government wishes to modify eligibility for federal benefits.
DOMA passed in the Senate by a margin of 85 to 14, getting the votes of many gay rights Senators, including Senator Joe Biden. It passed in the House by a margin of 342 to 67. The DOMA legislation was, therefore, strongly bipartisan. President Bill Clinton signed it into law in the fall of 1996.
The question before the Court in US v. Windsor is whether DOMA violates the Constitution. More particularly, is it a violation of the Due Process Clause of the 5th Amendment?
Most people think of “taking the 5th” when they contemplate the 5th Amendment. The right to “take the 5th” is only part of it. Its entire text says:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
There are five cardinal parts: (i) the right to indictment by Grand Jury in certain cases, (ii) the prevention of double jeopardy, (iii) prevention of self-incriminating testimony, (iv) the right to due process in certain disputes, and (v) rights in eminent domain seizures to just compensation.
Due process is a constitutional concept that prohibits government at all levels from depriving citizens of their right to “life, liberty, or property” without “due process” – i.e. notice and the fair adjudication of disputes. Due process rights are afforded in both the 5th and 14th Amendments. In the 5th it restricts the powers of the federal government and in the 14th it restricts the powers of state government.
The argument of Windsor in US v. Windsor is that the 1996 DOMA definition of marriage denies the equal protection (treatment) of federal law by defining marriage only as an opposite sex union when since 2011 her state of residence (New York) recognizes same sex marriage.
What is at stake? SCOTUS could disagree with Windsor and say, absent DOMA, the IRS would have looked to her state’s definition of marriage at the death of her partner in 2009 to determine her estate tax treatment. New York didn’t recognize same sex marriage until two years later so the tax is owed. Or it could take a more expansive view and rule that federal government is invariably discriminating in applying rules, regulations, and laws. Some people are taxed, for example, while others aren’t. Some people are taxed at higher rates than others. Singles are treated differently than married couples. The US Constitution, as I said last week, is not about fairness. It’s about justice – which is often unfair.
Of course, SCOTUS could agree with Windsor’s equal protection argument and strike down DOMA. The immediate effect would be that same sex couples in the nine states that recognize their unions as marriages would begin to have access to the same federal benefits that traditionally married couple have – joint tax filings, spousal survivor benefits, etc. If only it would stop there.
But it wouldn’t. Judges, politicians, and a lot of ordinary folk rarely think of the second-order and third-order effects of their decisions – the seen and unseen repercussions so cogently argued by Frederick Bastiat’s 1850 treatise. Once SCOTUS establishes a precedent that Congress and the federal government can’t regulate access to the federal treasury because that denies equal protection and discriminates, the court system will be deluged with second-order and third-order cases. And since the treasury has nothing in it that isn’t taken from citizens of this country, that deluge would be open season on every person’s purse. Well, maybe just the “rich” purses.
Anything is possible when it comes to the caprices of SCOTUS, but it’s inconceivable that the Windsor/DOMA case could be adjudged in a way that legalizes same sex marriage, especially when the Court has a case before it – Hollingsworth Prop 8 – that serves up the single sex issue on a silver platter. The Court has been loath, however, to wade into marriage cases unless they are compelling violations of other rights under the Constitution. It ruled that freedom of religion did not extend to religious tolerance of polygamous marriage in the 1878 Reynolds v. United States case. It ruled in 1967 that state laws preventing interracial marriage were unconstitutional under the 14th Amendment’s prohibition of racial discrimination. The case, Loving v. Virginia, argued that it didn’t discriminate since a black man couldn’t marry a white woman and a black woman couldn’t marry a white man. Both Reynolds and Loving were cases between men and women.
Hollingsworth Prop 8 is another second-order and third-order conundrum. On the surface it seems to be about states’ rights to define marriage. Prop 8 was an approved constitutional amendment by a majority of the citizens in California and it was later ratified on appeal to the state’s Supreme Court. If SCOTUS overturns California’s voters and court, agreeing with the same sex plaintiffs that their 14th Amendment due process rights are infringed by Prop 8, not only will SCOTUS negate a state’s sole right to define marriage, it will forever change the meaning of family as it has existed in western civilization for thousands of years. Sowing the wind, SCOTUS will reap a whirlwind of second-order and third-order lawsuits and society will reap their consequences.
How then would a state, prevented from defining marriage as between one man and one woman, argue that marriage shouldn’t include one man and multiple women, or one woman and multiple men, or group marriage? Polygamy, after all, is legally practiced in over 50 nations, often adherents of Islam. They are denied immigration into this country because their marriages wouldn’t be legal.
What’s to prevent a man from marrying his son or daughter or any child? There have been a number of highly publicized cases of school teachers having sex with their students. Why not allow them to marry? How about marriage for ten years instead of “’til death do us part?” People have left their estates to a pet. Why couldn’t they also marry the pet … or their house … or car?
These ridiculous examples are Bastiat’s unseen … the second- and third-order effects that are set in motion when all of the attention is on fairness and justice in the first-order issue.
If the term “marriage” can be defined to mean anything, it means nothing.
Under the symmetry of federalism, a DOMA definition makes sense because state and federal governments are separate domains. Forty-one states have a traditional definition of marriage; nine have non-traditional definitions. Even if all 50 states allowed same sex marriage to be legal, the purpose of DOMA wouldn’t compel the federal definition to change because traditional marriages would continue to be practiced alongside same sex marriages. But even if DOMA recognized same sex marriage for the purpose of applying federal benefits, it wouldn’t matter if all 50 states recognized only the traditional definition of marriage. DOMA could be modified to recognize both same sex unions and opposite sex marriages in determining access to federal benefits. Neither the state nor federal government restricts the other’s right to define marriage for their own purposes. US v. Windsor is not about same sex marriage. It’s about access to federal benefits.
DOMA is statutory law that has two major sections. Section 2 says that if any state defines marriage expansively beyond one man and one woman, other states individually have the right to decide if they will recognize non-traditional marriages. Since the Constitution is silent on marriage, DOMA Section 2 prevents the Full Faith and Credit Clause of the Constitution from being hijacked to nationalize same sex marriage.
DOMA Section 3 says that for purposes of federal law and federal programs, marriage is defined as “a legal union between one man and one woman as husband and wife.” This definition could change or be expanded in the future if the federal government wishes to modify eligibility for federal benefits.
DOMA passed in the Senate by a margin of 85 to 14, getting the votes of many gay rights Senators, including Senator Joe Biden. It passed in the House by a margin of 342 to 67. The DOMA legislation was, therefore, strongly bipartisan. President Bill Clinton signed it into law in the fall of 1996.
The question before the Court in US v. Windsor is whether DOMA violates the Constitution. More particularly, is it a violation of the Due Process Clause of the 5th Amendment?
Most people think of “taking the 5th” when they contemplate the 5th Amendment. The right to “take the 5th” is only part of it. Its entire text says:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
There are five cardinal parts: (i) the right to indictment by Grand Jury in certain cases, (ii) the prevention of double jeopardy, (iii) prevention of self-incriminating testimony, (iv) the right to due process in certain disputes, and (v) rights in eminent domain seizures to just compensation.
Due process is a constitutional concept that prohibits government at all levels from depriving citizens of their right to “life, liberty, or property” without “due process” – i.e. notice and the fair adjudication of disputes. Due process rights are afforded in both the 5th and 14th Amendments. In the 5th it restricts the powers of the federal government and in the 14th it restricts the powers of state government.
The argument of Windsor in US v. Windsor is that the 1996 DOMA definition of marriage denies the equal protection (treatment) of federal law by defining marriage only as an opposite sex union when since 2011 her state of residence (New York) recognizes same sex marriage.
What is at stake? SCOTUS could disagree with Windsor and say, absent DOMA, the IRS would have looked to her state’s definition of marriage at the death of her partner in 2009 to determine her estate tax treatment. New York didn’t recognize same sex marriage until two years later so the tax is owed. Or it could take a more expansive view and rule that federal government is invariably discriminating in applying rules, regulations, and laws. Some people are taxed, for example, while others aren’t. Some people are taxed at higher rates than others. Singles are treated differently than married couples. The US Constitution, as I said last week, is not about fairness. It’s about justice – which is often unfair.
Of course, SCOTUS could agree with Windsor’s equal protection argument and strike down DOMA. The immediate effect would be that same sex couples in the nine states that recognize their unions as marriages would begin to have access to the same federal benefits that traditionally married couple have – joint tax filings, spousal survivor benefits, etc. If only it would stop there.
But it wouldn’t. Judges, politicians, and a lot of ordinary folk rarely think of the second-order and third-order effects of their decisions – the seen and unseen repercussions so cogently argued by Frederick Bastiat’s 1850 treatise. Once SCOTUS establishes a precedent that Congress and the federal government can’t regulate access to the federal treasury because that denies equal protection and discriminates, the court system will be deluged with second-order and third-order cases. And since the treasury has nothing in it that isn’t taken from citizens of this country, that deluge would be open season on every person’s purse. Well, maybe just the “rich” purses.
Anything is possible when it comes to the caprices of SCOTUS, but it’s inconceivable that the Windsor/DOMA case could be adjudged in a way that legalizes same sex marriage, especially when the Court has a case before it – Hollingsworth Prop 8 – that serves up the single sex issue on a silver platter. The Court has been loath, however, to wade into marriage cases unless they are compelling violations of other rights under the Constitution. It ruled that freedom of religion did not extend to religious tolerance of polygamous marriage in the 1878 Reynolds v. United States case. It ruled in 1967 that state laws preventing interracial marriage were unconstitutional under the 14th Amendment’s prohibition of racial discrimination. The case, Loving v. Virginia, argued that it didn’t discriminate since a black man couldn’t marry a white woman and a black woman couldn’t marry a white man. Both Reynolds and Loving were cases between men and women.
Hollingsworth Prop 8 is another second-order and third-order conundrum. On the surface it seems to be about states’ rights to define marriage. Prop 8 was an approved constitutional amendment by a majority of the citizens in California and it was later ratified on appeal to the state’s Supreme Court. If SCOTUS overturns California’s voters and court, agreeing with the same sex plaintiffs that their 14th Amendment due process rights are infringed by Prop 8, not only will SCOTUS negate a state’s sole right to define marriage, it will forever change the meaning of family as it has existed in western civilization for thousands of years. Sowing the wind, SCOTUS will reap a whirlwind of second-order and third-order lawsuits and society will reap their consequences.
How then would a state, prevented from defining marriage as between one man and one woman, argue that marriage shouldn’t include one man and multiple women, or one woman and multiple men, or group marriage? Polygamy, after all, is legally practiced in over 50 nations, often adherents of Islam. They are denied immigration into this country because their marriages wouldn’t be legal.
What’s to prevent a man from marrying his son or daughter or any child? There have been a number of highly publicized cases of school teachers having sex with their students. Why not allow them to marry? How about marriage for ten years instead of “’til death do us part?” People have left their estates to a pet. Why couldn’t they also marry the pet … or their house … or car?
These ridiculous examples are Bastiat’s unseen … the second- and third-order effects that are set in motion when all of the attention is on fairness and justice in the first-order issue.
If the term “marriage” can be defined to mean anything, it means nothing.
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