Constitutional Law, Politics, Society

Supreme Court Strikes Down DOMA

The U.S. Supreme Court
The U.S. Supreme Court
As many of us predicted, Justice Anthony Kennedy supplied the fifth vote today to strike down the Defense of Marriage Act (DOMA).  I just returned from offering legal analysis in front of the Supreme Court (and roasting in the DC summer weather with CNN).  I will be discussing the case tonight with BBC.  The surprise was not in the outcome or the split but the scope of the decision.  Kennedy could have rendered the same decision on a narrower basis but chose to render a more expansive endorsement of the constitutional protections for gay couples.  These are marriages, plain and simple, and cannot be simply discharged by Congress. Kennedy wrote: “DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty.”


As I discussed on CNN, I was most struck by the more small minority of justices on the Court that view such laws as justified on morality grounds. That view is now argued almost exclusively by Justice Scalia and Justice Thomas.

Kennedy’s decision is a sweeping victory for the equal protection of couples regardless of gender. He writes:

By creating two contradictory marriage regimes within the same State, DOMAforces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of statesanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriagesare unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the Statehas sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

Scalia was equally passionate. Indeed, when Jake Tapper noted on the air with me that he hasn’t seen a dissenting opinion with this type of heated language, I almost added “since the last Scalia dissent.” Scalia was at his signature best of venting his anger:

That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congressand the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every- where “primary” in its role.

The Proposition 8 decision was a win by default for the couples on standing grounds. However, it effectively kills everything on the docket after the district court order. That leaves the state open again for gay marriages.

Here is the decision in Windsor: 12-307_g2bh

Here is the decision in Hollingsworth: 12-144_8ok0

142 thoughts on “Supreme Court Strikes Down DOMA”

  1. “…empowered to decide all constitutional questions…” Does Scalia know that he is a Supreme Court Justice? Hasn’t this been the settled role for the Supreme Court for over 200 years? If his jaw dropped over this perhaps it would drop even further if he were to be impeached because he doesn’t even know what his job is anymore.

  2. Plus Nino is fat, Catholic and stupid. Oh, and he’s balding,

  5. While I am pleased with the decision…. Questioning in the back of my mind are the two other decisions issued this week….. The VRA and the AA case….. How do they square? Here they say one thing…. And the two others . What….

  7. Gene,

    He sounds … what’s the word I’m looking for … ah, yes … petulant :mrgreen:

  8. Blouise,

    Yes, but I’d already forgotten about it…, so thanks for the reminder. (-: The following tweets bear repeating. (Hoping this will post.)

    Michael C Moynihan ✔ @mcmoynihan

    @ggreenwald @BenjySarlin Now if only SCOTUS would rule Peter King unconstitutional, you could return to the US. Baby steps, I guess…

    Glenn Greenwald ✔ @ggreenwald

    @mcmoynihan @BenjySarlin It is ironic that I waited 8 years for this decision, and now that it happened, I have that other small matter.
    10:43 AM – 26 Jun 2013

  9. Chase Mitchell on twitter: “Millions of gays and lesbians suddenly getting calls from their mothers to remind them how old they’re getting.”

  10. Blouise,

    Scalia’s jurisprudence is riddled with such contradictions. Ultimately that’s what makes him such a poor jurist. He’ll deploy outcome determinism when it suits his personal wont or political agenda.

  12. mespo,

    Strange words from Scalia given yesterday’s decision and the one back in 2001 wherein the Court actually installed a President but then I’m just a lowly retired musician, what do I know of judicial reasoning.

  14. “It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every- where “primary” in its role.”

    *****************************

    Wow, Mr. Justice Scalia, we haven’t seen that idea before! We lawyers all know that Chief Justice John Marshall was just joshing when he said in Marbury v. Madison:

    It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
    So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
    Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law [e.g., the statute or treaty].
    This doctrine would subvert the very foundation of all written constitutions.

    I really think a lawyer at the “apex” of the judiciary and who taught about 60 miles from Mr. Marshall’s colonial home would know this. But, hey, they don’t publish it very often in the National Review.

  15. Blouise,

    I’m also glad that the decision prevailed on equal protection grounds (as many here predicted). It shows that while the rest of the Constitution and Bill of Rights is under fire, at least the 14th still has some teeth.

  16. “Tonight a few friends will join me in raising a glass to Attorney Mary Bonauto, the mastermind of GLAD’s legal strategy.” -Blouise

    Kudos to Bonauto.

    Mary Bonauto, Gay Marriage Hero

    On this historic day, the legal architect of the DOMA repeal should not be forgotten.

    By Justin Peters|Posted Wednesday, June 26, 2013, at 1:10 PM

    http://www.slate.com/articles/news_and_politics/jurisprudence/2013/06/mary_bonauto_doma_repeal_why_every_gay_marriage_supporter_should_be_thanking.html

    Portland lawyer Mary Bonauto credited as ‘mastermind’ behind landmark gay rights court cases

    By Noah Hurowitz, Special to the BDN

    Posted March 30, 2013, at 2:42 p.m.

    http://bangordailynews.com/2013/03/30/news/state/portland-lawyer-mary-bonautos-advocacy-for-gay-rights-is-helping-to-change-america/

  17. Blouise,

    Please hoist one for me. 😀

    Steve,

    Yep. And the liabilities stand to do staggering damage to our democracy.

  18. One interesting economic by product of the DOMA decision will be the transfer of wealth from those states that ban gay marriage to those that have legalized it. For instance, if it does not adopt same sex marriage, my home state of Illinois will now be denying to its citizens tens or hundreds of millions of dollars of Federal economic benefits that could be flowing into our economy. The 13 states that recognize gay marriage will be getting a huge financial subsidy from all those who don’t. Illinois with its overwhelming economic problems can’t leave those millions on the table.

  19. This is really a good/bad court.

    DOMA on one hand, the Salinas decision on the other.

    On balance, SCOTUS is currently a net liability.

  20. Tonight a few friends will join me in raising a glass to Attorney Mary Bonauto, the mastermind of GLAD’s legal strategy.

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