June 27, 2013

DOMA: What Supremes Were Really Thinking

In the wake of yesterday’s decision (US v. Windsor) striking down the federal definition of marriage in the Defense of Marriage Act, legal experts are having a hard time making sense of what Justice Scalia called the “disappearing trail[s] of … legalistic argle-bargle” in the majority opinion.  Instead, we are left to guess what Justice Kennedy and his four colleagues were thinking when they wrote or joined the opinion.  Here’s our best guess at what those five Justices were really thinking when they struck down DOMA (quotes are from the majority opinion):
What the Supreme Court said yesterday:  “What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.”
What the Supreme Court was really thinking:  We don’t agree with DOMA, so the Congress that enacted it – and President Clinton, who signed it – must have been mean and homophobic.
Supreme Court:  “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.”
Really thinking:  We’re sorry for going off on a tangent about federalism.  Please ignore the previous seven pages of this opinion.
Supreme Court:  New York’s recognition of same-sex marriage “reflects … its evolving understanding of the meaning of equality.”
Really thinking:  Our understanding of the meaning of equality will continue to evolve until it requires us to mandate recognition of same-sex marriage in all 50 states.
Supreme Court:  DOMA is an “unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage.”
Really thinking:  It is implausible to claim that there’s no precedent for DOMA’s definition of marriage, so we have to settle for calling the statute unusual.
Supreme Court:  The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure [same-sex couples].”
Really thinking:  No discussion or analysis of the legitimate purposes put forth by DOMA’s supporters is necessary, because we already told you the supporters are mean and homophobic.
Supreme Court:  “New York was responding to the initiative of those who sought a voice in shaping the destiny of their own times … Private, consensual sexual intimacy between two adult persons of the same sex … can form but one element in a personal bond that is more enduring.” (internal quotation marks omitted)
Really thinking:  We may not excel at legal reasoning but, if any publishers are listening, we would be great at writing self-help books.
Supreme Court:  “The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.”
Really thinking:  If you want to get fussy about precedent, maybe DOMA doesn’t really violate the Fifth Amendment's liberty interest.  But would you believe us if we told you that DOMA violates equal protection?
Supreme Court:  “While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.”
Really thinking:  Law students, don’t worry if you don’t understand this.  We don’t either.
Supreme Court:  DOMA “humiliates tens of thousands of children now being raised by same-sex couples.”
Really thinking:  We’re telling you that kids look to federal law when determining whether to be embarrassed by their parents, and you are going to have to take our word for it because we’re the Supreme Court.
Supreme Court: “Responsibilities, as well as rights, enhance the dignity and integrity of the person.”
Really thinking:  This rhetoric doesn’t add anything to our legal analysis, but it works great when you want kids to do their chores.
Supreme Court:  “This opinion and its holding are confined to those lawful marriages [recognized by the states].”
Really thinking:  There would be no reason for us to say this if the logic of the opinion really limited its holding to lawful marriages.  We would be stating the obvious.
Supreme Court:  “The power the Constitution grants [to Congress] it also restrains.”
Really thinking:  We don’t think this principle applies to the Supreme Court’s power, as we make clear with this DOMA decision.