Failing the Higher Standard: United States v Windsor

When I  said I would write reviews of the the two highly controversial US Supreme Court (SCOTUS) decisions handed down June 26th, 2013, I intended to do my best to stick to the facts, and put my opinions aside.   I think I did so with my last post, titled: Hollingsworth v Perry (aka. the "Proposition 8 case").  Unfortunately, in the second decision, United States v Windsor, the Supreme Court produced a document that is saturated with "bias", so my attempts to be "unbiased" are hopeless.  Rather than struggle to describe a pig as a racehorse, I will call it a pig.

Please read the opinion.  It is a slog to read, but worth the effort.  This is our court, and our law.  We have a duty to supervise the court, and we can't do that if we always rely on others to read their decisions.

United States v Windsor is an atrocious decision for several reasons.

• On the question of standing, it is in conflict with Hollingsworth.
• It makes up constitutional doctrine out of whole cloth.
• This "legal decision" reads like an uncivil tirade that repeatedly and gratuitously insults those who disagree with the majority opinion.
• Lastly, it frames its conclusions in a way that will generate rather than settle future disputes.

For a court that is supposed to be fair and dispassionate in its judgements, this is a failure of the highest order.

This case is officially called United States v Windsor.  Edith Windsor and another woman married in Canada.  When Windsor's spouse died, she brought suit against the United States government for denying her an estate tax exemption as a surviving spouse.

This case in some ways is remarkably similar to Hollingsworth. Both cases have an issue of standing caused by the refusal of government officials to defend the law.  In both cases, a substitute defendant is engaged.  In Hollingsworth the court ruled that the substitute defendant (the proponents of Proposition 8) did not have standing.  In Windsor the court ruled that the substitute defendant (the Bipartisan Legislative Advisory Group - BLAG) did have standing.  This inconsistency is made egregious by the apparent reason for the ruling on Windsor, which appears to be a desire by the majority on the court to accept the case and rule on it.

Having granted themselves a chance to rule on this case, they took full advantage of the opportunity.  This should have been a case about federalism.  Marriage is clearly something that is in the realm of state law, not federal law. (This point is emphasized in the majority opinion.)  DOMA was designed to limit the impact of the laws of one state on the others, and to define a separate federal standard for marriage only for those narrow purposes where it is of necessity a federal issue.  DOMA is narrowly tailored to those federal purposes, and does not seek to overturn state law.  DOMA was relatively non-controversial when it was passed in 1996.

The Supreme Court majority in this case takes a completely different approach, making up "harms" and "injuries" out of whole cloth and using them as a reason to disparage and insult those who supported and passed DOMA. The opinion goes so far as to imply that the sole purpose of DOMA is to "humiliate" people (page 23 of the opinion).

The logic of the decision is at best tortured. The court admits that there is no mention of marriage or sexual preference in the US Constitution. The court reminds us that the federal government has "no authority … on the subject of marriage and divorce".  The court highlights examples where federal power is validly exercised to define marriage for federal purposes independent of state law, such as Social Security benefits, insurance and immigration (page 15).  The court clearly accepts the idea that federal law can re-define the qualifications for "marriage" for federal purposes.  Despite this, the court passes judgement on the political questions of the specifics of when this power may be exercised.  DOMA is invalidated on the basis of the "harm" and "humiliation" they allege it to cause, not on legal principle.  After the lengthy treatment in the opinion about standing, and why the court should not weigh in on political questions, that is exactly what they do.

For the constitutional basis of their ruling, the court draws a connection to the "equal protection" clause of the 14th amendment, inventing a right to marriage rooted in the "historical roots of the [marriage] institution, and its evolving understanding of the meaning of equality." To put it in plain English, they're saying that now that we all know that same sex couples have just as much a right to marry as anyone else, it's a violation of the equal protection clause to refuse to recognize their marriages. In short, the Supreme Court has leap-frogged ahead of the political process, pretending that this hotly contested issue has already been resolved and basing their legal arguments on the presumed outcome.

The decision goes on to insinuate that to define marriage in a way that is at odds with the court's opinion is indulging in  a "… bare congressional desire to harm a politically unpopular group" and that desire cannot "justify disparate treatment of that group." Traditional marriage is said to be unacceptable.

The court makes it clear that the justices disapprove of the "disparate treatment" of homosexuals, but it does not appear to ground its decision in constitutional law, but in things like the "[humiliation of] tens of thousands of children now being raised by same-sex couples."  Even if this is a valid concern, it is opinion, not legal decision. It is the substitution of the opinions of the 5 majority justices for the representatives of the people.

I strongly recommend reading the dissenting opinions.  Justice Roberts lays out these points, and more.  Justices Scalia and Thomas write that this decision is: "… an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions..." (page 36 of the opinion)

This decision could have been about federalism, and the limits of federal power, but the desire to weigh in on a hot, contentious political issue seems to have overwhelmed the justices.

Lastly, SCOTUS decisions should settle the law, not provoke more conflict.  The decision does not find that there is a constitutional right to same-sex marriage, but lays out all the justification for that conclusion while saying explicitly that it has not reached that conclusion.  Justice Scalia puts it succinctly: "the majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited."

This decision is illogical, inconsistent, and overreaching.  Its core holdings appear based more on a desire to rule according to current fashion than on sound legal reasoning.  It is unnecessarily divisive and "demeaning" to those who disagree, and it sets us up for a blizzard of legal filings in every state that might dare to "defend marriage", against the obvious disapproval of the US Supreme Court.  The fallout from this decision will be substantial.

I am very disappointed.