Boring. That’s what I have to say, legally speaking, about the much-anticipated SCOTUS cases related to same-sex marriage. In U.S. v. Windsor the SCOTUS took on the legality of the Defense of Marriage Act (DOMA), a statutory refusal to recognize same-sex marriage for purposes of a myriad of federal laws. In Hollingsworth v. Perry they might have decided the constitutionality of California’s Proposition 8, under which gay unions would not be granted the title of “marriage.”
Here’s why the DOMA case was boring:
- Ginsburg, Breyer, Sotomayor and Kagan voted together. Rumor has it that they eat from the same plate of fries in the SCOTUS dining hall.
- Kennedy was the key swing vote. Like that’s never happened before.
- The majority opinion was purposefully vague. Was it based on federalism? Equal protection? Substantive due process? What was the level of scrutiny?
Here’s why the Prop. 8 case was boring:
- There was no determination on the constitutionality of Proposition 8.
- The decision was based on standing.
- It read like this: “it is hornbook law that ‘a principal has a duty to indemnify the agent against expenses and other losses incurred by the agent in defending against actions brought by third parties if the agent acted with actual authority in taking the action challenged by the third party’s suit.’ [citation omitted] If the issue of fees is entirely distinct from the authority question, then authority cannot be based on agency.” Doesn’t that just make your blood boil?
But now we’ll take a look at the most interesting aspects of the two cases. The Prop. 8 case can be disposed of rather quickly. First, there was an unusual alignment of judges. The majority opinion had Roberts joined by Scalia – no surprise so far – joined by Ginsburg, Breyer and Kagan while the dissent brought Alito and Thomas together with Kennedy and Sotomayor. Second, the dissent mildly “called out” the majority for dodging the constitutional issues:
the Court must be cautious before entering a realm of controversy where the legal community and society at large are still formulating ideas and approaches to a most difficult subject. But it is shortsighted to misconstrue principles of justiciability to avoid that subject.
Clearly Kennedy needs lessons in rhetoric from Scalia, whose tone in his DOMA case dissent was not so subtle:
In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.
So what do we make of the two decisions? The unusual alignment of judges in the Prop 8 case is an indicator that the justices truly came to distinct conclusions in legal theory. The decision then gets sent back down, eventually landing in the California Supreme Court which had overturned Prop 8. Conclusion: blame the California Supreme Court for not letting the popular vote decide on “marriage.”
As for the DOMA case, they were dealing with legislation that doesn’t live up to its label. There wasn’t one less gay marriage because of DOMA and there won’t be a flood of them now that it’s been struck down. And Kennedy rightly pointed out a harmful aspect of DOMA:
DOMA also brings financial harm to children of samesex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses. [citations omitted] And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security.
As for the effect of the DOMA case on future legal proceedings, only time will tell whether its vagueness and purported intention of rendering a limited decision will, indeed, limit its precedential value. And we can hope Scalia was wrong in saying “The result will be a judicial distortion of our society’s debate over marriage.”