Behind the Prop 8 ball: The Supreme Court’s curious DOMA decision

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On the last day of its 2012-2013 term, a closely divided U.S. Supreme Court released two decisions widely viewed as victories for gay rights. (That the decisions came down during Pride Week, formerly known as “Gay Pride Week,” is likely coincidental yet still symbolic.)

In United States v. Windsor, Justice Kennedy wrote for a 5-4 majority that Section 3 of the federal Defense of Marriage Act — which defines “marriage” as between “one man and one woman” and “spouse” as a “person of the opposite sex who is a husband or a wife” — is unconstitutional under the Fifth Amendment’s due process clause and its guarantee, through the Fourteenth Amendment, of equal protection under the law.

Among other things, Justice Kennedy wrote, DOMA operates to deny a marital exemption from the federal estate tax and other “benefits” of federal law to same-sex married couples, and “disparages and injures” those whom states seek by their marriage laws to protect in personhood and dignity for no legitimate purpose.

Writing for a different 5-4 majority in Hollingsworth v. Perry, Chief Justice Roberts in effect upheld a U.S. District Court decision throwing out as unconstitutional California’s Proposition 8, which had amended the California constitution to define marriage as the union of one man and one woman.

Same result, different reasoning: Although in Windsor the Court had reached the merits of the case, in Hollingsworth it decided that the parties simply had no standing for it to consider the issue.

As a libertarian conservative, I believe that common decency and the fundamental rights of liberty and the pursuit of happiness permit consenting adults to love whom they love and to make the life they wish together, although I do not see how either liberty or the pursuit of happiness entitles anyone to federal “benefits” paid for with tax dollars conscripted from others.

But as a lawyer and a student of the Constitution, I am deeply troubled by the way that the Court reached its results: In Windsor the Court skipped lightly over the procedural hurdle known as “standing” in order to throw out DOMA while impugning those who support it; yet in Hollingsworth the Court danced away from deciding the case on the grounds of lack of standing, thereby letting stand a trial court judgment throwing out Prop 8. In a constitutional democracy with a republican form of government, such results-oriented justice imposed by the judiciary based on a distinction without a difference is a very dangerous thing.

DOMA was enacted precisely to protect the concept of “traditional” marriage from evisceration by the courts. Because the U.S. Constitution requires every state to give “full faith and credit to the public acts, records, and judicial proceedings of every other state,” concern arose among citizens of some states that, without DOMA, federal courts of unelected judges could force states whose citizens disapproved of same-sex marriage to recognize same-sex marriages performed in other states. Thus in 1996 Congress passed — and Democratic President Bill Clinton signed — the Defense of Marriage Act.

After first announcing that it supported DOMA, the Obama administration declined to defend it in court. When Edith Windsor, a New Yorker who had married her same-sex partner in Canada, sued the U.S. Treasury to receive an estate tax refund based on an exemption available to married couples, the executive branch agreed that was the correct result. Yet despite the agreement of the two supposed adverse parties, a Supreme Court majority still found that the case presented a “controversy” that it could and should resolve.

In contrast, in Hollingsworth, the parties were actually adverse but the Supreme Court declined to reach the merits, even throwing out the Court of Appeals decision on grounds of lack of standing while letting the trial court judgment stand. “Petitioners have no role — special or otherwise — in the enforcement of Proposition 8,” wrote Chief Justice Roberts, despite the California Supreme Court’s explicit determination that, in a post-election challenge to a voter-approved initiative, California law authorized the initiative’s proponents to assert the state’s interest in court. Chief Justice Roberts therefore declined to reach the merits and let stand the trial court decision throwing out Proposition 8.

In Windsor, in short, the U.S. Supreme Court usurped the power of the people, speaking through their representatives in Congress; and in Hollingsworth the Court permitted a U.S. District Court to override the power of the people of California, speaking directly in a referendum rejecting a contrary decision by their own state Supreme Court.

In both cases, a 5-4 majority of unelected Supreme Court justices did so apparently in order to reach a policy result that five justices believe is socially correct, reducing the concept of “standing” to a political plaything in the process. In context, Chief Justice Roberts’s admonition in Hollingsworth that “[t]he doctrine of standing … ‘serves to prevent the judicial process from being used to usurp the powers of the political branches’,” citing Clapper v. Amnesty Int’l USA, seems particularly disingenuous.

It’s commonly said that hard cases make bad law, but neither Windsor nor Hollingsworth was a particularly hard case. It would have been easy in Windsor for the Court to find the controversy resolved by granting the tax refund and the government’s agreement not to challenge it, and in Hollingsworth to permit Prop 8 proponents to have fulfilled their role as proper parties to the dispute under California law.

In both cases, that is, the Court could have left resolution of what the chief justice himself characterized in Hollingsworth as “an active political debate” — i.e., “whether same-sex couples should be allowed to marry” — to the people through the political process.

David Applegate, a lawyer, is an accomplished public speaker and frequent writer on topics of legal and public interest.