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A strange re-writing of the DOMA opinion

Randy Barnett, writing on both the SCOTUSblog and the Volokh Conspiracy blog, has re-tooled the logic of Windsor v. United States in a form that is more pleasing to his desire for federalism cases.  Only, it’s not what the court ruled or said.   He describes his take on the logic of the decision:

  1. The definition and regulation of the right to marry is traditionally the province of states (and is not among the enumerated powers of Congress.  (“The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens.” [17])
  2. When it enacted DOMA Congress was demonstrably intending to and did interfere with this traditional function of states to define and regulate the right to marry by raising the cost to same-sex couples of being married under state law.  (“DOMA seeks to injure the very class New York seeks to protect” [20])
  3. Therefore, the Court will use heightened scrutiny to evaluate the rationality of DOMA’s imposed definition of marriage (“ In determining whether a law is motived by an improper animus or purpose, ‘[d]iscriminations of an unusual character’ especially require careful consideration.”).
  4. This unusual deviation from the past practice of respecting state law definitions of marriage was improperly motivated by animus.  (“The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” [21)

Barnett then sums up:  “In short, under Justice Kennedy’s reasoning, it is the fact that states have recognized same-sex marriage that gives rise to heightened judicial scrutiny (“Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.””  “See!” he says, wielding his hammer at what is certainly not a nail, “It’s a federalism case!” That is not remotely what the opinion does. First, while describing the traditional state role in defining marriage, the opinion expressly states that it does not have to reach questions of the impact of federalism.  

Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism.

Page 18.  I think he would have split the five votes in the majority if he’d gone off on federalism as his rationale.  He did not. Second, he says something about four different ways that is best expressed by this sentence:

DOMA seeks to injure the very class New York seeks to protect.

Page 20.  In the middle of this sequence, the opinion makes the statement that Barnett attempt to warp into a holding that federalism issues get higher scrutiny.  It says:

““‘‘[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’’”” Romer v. Evans, 517 U. S. 620, 633 (1996) (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U. S. 32, 37––38 (1928)).

Page 19.  Barnett omits the citation, which is the tip-off to what this means, and (this once), Barnett provides no page reference so it’s harder to ferret that out.  Here’s the holding in Romer:

To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.

That is not a federalism holding, boys and girls.* Notice that Barnett’s reworking of this logic also swaps out points 2 and 3; in the actual opinion, his point 3 comes first, which is another probable reason for not cluing us in with a page citation on that one. In any event, third, the opinion goes into the animus against gays evinced by DOMA:

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Gov- ernment. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’’s guarantee of equality ““must at the very least mean that a bare con- gressional desire to harm a politically unpopular group cannot”” justify disparate treatment of that group. Depart- ment of Agriculture v. Moreno, 413 U. S. 528, 534––535 (1973). In determining whether a law is motived by an improper animus or purpose, ““‘‘[d]iscriminations of an un- usual character’’ ”” especially require careful considera- tion. Supra, at 19 (quoting Romer, supra, at 633). DOMA cannot survive under these principles. The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’’s classifications have in the daily lives and customs of its people. DOMA’’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. The history of DOMA’’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.

What the Court is saying here is not that the problem is interference with normal state power, but that this interference highlights the probability that Congress is up to no good.  And from there, the opinion goes on to show how DOMA injures individuals with lawful gay marriage.  The opinion then reaches toward its conclusion.

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. This requires the Court to hold, as it now does, that DOMA is unconsti- tutional as a deprivation of the liberty of the person pro- tected by the Fifth Amendment of the Constitution.

The holding of this opinion (following Romer) is that legislation founded only on animus toward gays violates Equal Protection.  From there, I’m not sure whether to say that Kennedy would have courts apply higher scrutiny of some sort to legislation involving gays (I don’t think he’s saying that) or that bare animus is not enough to survive rational basis review (he never says that. Scalia argues that rational basis review should have been applied and that DOMA would survive rational basis review); I would think it would have to be the first or the second, but the opinion is pretty opaque about this part of the holding. What is crystal clear, though, is that the holding is about the unconstitutionality of legislation driven by animus toward gays.  It is not a federalism case.


*That citation by Kennedy to Louisville Gas & Elec. is extremely bizarre, even though it says just what Kennedy cites it for saying.  Louisville, a Sutherland opinion, held it an Equal Protection violation for the state of Kentucky to charge a recordation tax for mortgages of over 60 months.  Justices Holmes and Brandies both dissent.  If a law student brought me that case to use for that single sentence, I’d look at them and say, “Are you really going to suggest to me that this case is still good law?” There’s been a lot of water under the Equal Protection bridge since 1928 and Louisville Gas & Elec.  It is somewhat mind-boggling to contemplate a historical moment when Jim Crow segregation did not violate Equal Protection but charging a mortgage tax that distinguished between mortgages over 5 years and those under did violate Equal Protection.

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