Sunday, July 21, 2013

Hitchcock: SCOTUS on DOMA

Editor's Note: The following op-ed appears here with the permission of its author. It was submitted to the Idaho State Journal for print. 

SCOTUS ON DOMA: The Real Message
by Leonard Hitchcock

The Supreme Court’s decision regarding the Defense of Marriage Act contains two lines of argumentation that are essentially incompatible.  The first is that DOMA is unconstitutional because it violates a state’s right to determine its own definition of what constitutes a marital relationship; the second is that DOMA is unconstitutional because it violates a citizen’s Fifth and Fourteenth Amendment rights to liberty and equal treatment under the law.

The first argument unfolds in the following way [all quotations are from the majority opinion of the court, written by Justice Kennedy]: The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the protection of offspring, property interests, and the enforcement of marital responsibilities.” Creating that definition “has long been regarded as a virtually exclusive province of the States.”

It is true that the federal government has occasionally intervened in states’ regulation of domestic relations.  Congress determined, for example, that marriages “entered into for the purpose of procuring an alien’s admission [to the United States] as an immigrant will not qualify the noncitizen for that status, even if the noncitizen’s marriage is valid and proper for state-law purposes.” It also decided that, in the computation of social security benefits “common-law marriages also should be recognized, regardless of any particular State’s view on these relationships.” 

But these interventions involved discrete federal programs and were tailored to do no more than make the operation of those programs efficient and fair.  DOMA was very different.  DOMA was not enacted to implement a specific government program, and it was “applicable to over 1,000 federal statutes and the whole realm of federal regulations.”  Moreover, because some states had decided to recognize same-sex marriages, DOMA had “rejected the long established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary… from one State to the next.”  In other words, DOMA had usurped those states’ rightful authority and created a category of couples whose marriages, though recognized by the state, were nullified by federal law.  In so doing, DOMA violated the Constitutional balance of power between the states and the federal government.

The second line of argument focuses on the intent of DOMA and its effects upon the rights of individuals, rather than the rights of states. The discriminatory intent of DOMA, according to the court, was “to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages” and “to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.”  DOMA resulted from a “congressional desire to harm a politically unpopular group,” and therefore was clearly “motived by an improper animus or purpose.”

The law sought “ to impose restrictions and disabilities” upon a state-defined class of persons” and “ the resulting injury and indignity [was] a deprivation of an essential part of the liberty protected by the Fifth Amendment.”  The effects of DOMA involved a wide range of practical negative consequences, in areas such as federal health care programs, social security, taxation, and bankruptcy law. It also “divested same-sex couples of the duties and responsibilities that are an essential part of married life and that they in most cases would be honored to accept were DOMA not in force,” and it affected the children of same-sex couples, making 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.”

In sum, the Court concluded that “DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,” a liberty that “contains within it the prohibition against denying to any person the equal protection of the laws.” 

In the opinion’s narrative, the two lines of argumentation I’ve delineated are intertwined.  Its censures of DOMA’s Fifth Amendment violations usually presuppose the context of the case actually before the court, i.e. a gay married couple in a state that permits same-sex marriage.  And the final sentence of the opinion insists that the court’s decision should be understood as applying only to such persons. 

But Justice Scalia, in his dissenting opinion, quite correctly points out that all of the criticisms contained in what I have called the second line of argument would apply not just to DOMA, but to state laws and constitutions that prohibit same-sex marriage.  Hence an assumption of the first line of argument -- that whether or not a state decides to permit same-sex marriage is of no constitutional concern – is obviously false.  What the court has actually made quite clear is that if and when a legal challenge to a state law (or constitution) banning same-sex marriage reaches the Supreme Court, that challenge will be warmly received.  It is not coincidental that immediately after the DOMA decision, the ACLU in Pennsylvania brought suit against that state’s law against same-sex marriage. The handwriting is on the wall.

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