American democracy at work is an ever-evolving picture. Sometimes the picture is one of elegance and grace. At other times the picture borders on the grotesque. In our extended republic, public-policy matters are susceptible to myriad solutions and experiments, with some of these experiments going according to plan and others going horribly wrong. But the power remains in the people and their elected representatives to reevaluate prior efforts and try something new.
On June 26, the Supreme Court “photo bombed” the debate over gay marriage. Rather than permitting the people and their elected branches of government to hash out this fairly new issue, the Court stepped in and struck section 3 of the Federal Defense of Marriage Act (DOMA). Under this provision, the words “marriage” and “spouse,” for the purpose of interpreting federal regulations and statutes, are limited to “a legal union between one man and one woman as husband and wife.” DOMA was passed in 1996 by Congress with the support of 342 representatives and 85 senators. Bill Clinton signed the measure into law. DOMA was a response to a 1993 Hawaii court decision holding that government must have a compelling justification to limit marriage to the traditional definition.
Under section 3, a gay couple exchanging marriage vows in a state recognizing such unions would not qualify for certain federal benefits, such as Social Security survivors’ payments, tax breaks for married couples, and insurance coverage for federal employees.
The plaintiff in United States v. Windsor challenged DOMA in federal court because section 3’s definition of marriage denied her a federal estate-tax exemption for surviving spouses. Windsor and her deceased partner were joined in a relationship that New York recognized as a marriage. The denial of the federal exemption caused Windsor to pay an additional $363,053 in estate taxes.
With this explanation of the controversy, it appears that this case beckoned for a court decision at the highest level. But while the legal action was pending in the lower courts, the executive branch decided that section 3 was unconstitutional and announced that it would no longer defend this part of DOMA. The lower courts allowed the Bipartisan Legal Advisory Group (BLAG) to intervene to offer arguments in support of DOMA. Windsor prevailed in the district court and in the Second Circuit Court of Appeals. Because Windsor won and her supposed opponent (the United States) agreed with the outcome, the case should have been over. No case or controversy remained. There was nothing left to appeal to the Supreme Court.
To try to gin up a controversy, the United States refrained from paying Windsor the $363,053. This could have been remedied by Windsor seeking a writ of mandamus, or some other similar writ, from the Second Circuit or district court ordering that the Department of the Treasury cut the check. It was certainly not a ground for another full round of appeals.
Why couldn’t BLAG be the opponent in the appeal to the Supreme Court? For the same reason the Supreme Court held that the proponents of California’s Proposition 8 had no standing to appeal a district court’s order that struck down the state’s constitutional definition of marriage. In a statewide referendum, the people of California enacted Proposition 8 in 2008 to define “only marriage between a man and a woman” as “valid or recognized in California.” The state authorities declined to defend Proposition 8 in federal court, and the district judge permitted the groups that supported the passage of the proposition to offer arguments in its defense. This case, Hollingsworth v. Perry, decided on the same day as Windsor, held that the Proposition 8 proponents could not appeal the district court’s order striking down the proposition because they had no standing—they suffered no tangible and personal harm. The state of California had suffered the harm in having a provision of its constitution voided, but because it was not interested in defending the provision, there was no aggrieved party to push the case forward.
It takes much legal legerdemain to distinguish the standing questions in Perry and Windsor. The United States and California both appear to occupy the same ground. They refused to defend a measure defining marriage and were happy with the outcome of the cases in the lower federal courts.
So why the different Supreme Court results? Justice Scalia answers this in this in his Windsor dissent. “The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case.” The Court has been incrementally moving towards approval of gay marriage since it struck down an anti-sodomy law in Lawrence v. Texas in 2003. Nullifying the definitions found in DOMA’s section 3 was the next incremental step in the process of constitutionalizing gay marriage.
With Windsor, the Court can claim that it is simply requiring the federal government to respect a state’s decision to recognize a marriage between people of the same sex. It is not mandating that all states permit gays to marry. That step comes later.
The Court has laced the Windsor opinion with language that will be used and cited by lower courts when they hold that states cannot deny marital status to consenting adults of the same sex. DOMA, the Court lectured, is a “deprivation of the liberty of the person” guaranteed by a substantive reading of the Fifth Amendment’s Due Process Clause. The sole purpose of defining marriage in the traditional sense, the Court averred, was “to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriage.”
It does not take an Ivy League degree to deduce that if the Fifth Amendment’s Due Process Clause prohibits limiting marriage to one man and one woman, then the Fourteenth Amendment’s Due Process Clause, which applies to the states, does the same. States so limiting marriage, to borrow from the Windsor decision, “demean the couple[s], whose moral and sexual choices the Constitution protects.”
The real tragedy here is to our system of government. A December 2012 USA Today poll revealed that 73 percent of young adults (defined as 18 to 29 years old) support same-sex marriage. The number was 53 percent in the entire adult population. Currently 12 states and the District of Columbia permit gay marriage. If the poll numbers are correct, gay marriage via ballot initiatives and the legislative process will be a fact of American life.
Despite the political process moving with alacrity to a result that a majority of the Supreme Court apparently endorses, the Court nonetheless has inserted itself into the democratic process. The president, Congress, the states, and the people, in the Court’s mind, are not capable of defining marriage without leadership from the Supreme Court.
In contriving standing so it could hear Windsor, the Court refers to principals of judicial supremacy and quotes the familiar line from Marbury v. Madison, that “It is emphatically the province and duty of the judicial department to say what the law is.” Americans would be lost, the Court implies, if it does not weigh in on any question dealing with law—even clearly political questions where the parties lack standing.
Just as the Court’s intervention into the abortion issue in 1973 derailed the political process and has resulted in 40 years of unrest, so too will its ultimate decision on gay marriage. In the words of Justice Scalia, “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.”
Etched in the stone above the entry to the Supreme Court are the words “Equal Justice Under Law.” In light of Windsor, perhaps the Court ought to consider borrowing a motto from the U.S. Army’s Military Intelligence Corp: “Always Out Front.” But it should keep in mind the dangers an advanced guard faces when unnecessarily jumping ahead of the main body of troops.
William J. Watkins Jr. is the author of Judicial Monarchs: Court Power and the Case for Restoring Popular Sovereignty in the United States.