Scalia, dissenting today, has some language that the dissent could have used nicely in yesterday’s preclearance case:
This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.
Here’s US v. Windsor. More in a bit.
SCOTUSblog quotes Scalia: “The Court’s opinion both in explaining its jurisdiction and its decision “both spring from the same diseased root: an exalted notion of the role of this court in American democratic society.””
The result in the Prop 8 comes out indirectly in a footnote in Roberts’s Windsor dissent. From SCOTUSblog: “Page 4 of hte Roberts dissent, talking about Prop 8: “We hold today that we lack jurisdiction to consider it in the particular context of Hollingsworth v. Perry.”” Roberts writes the opinion in Perry.
Here’s an odd bit from Kennedy given yesterday’s preclerance case:
Just this Term the Court upheld the authority of the Congress to pre-empt state laws, allowing a former spouse to retain life insurance proceeds under a federal program that gave her priority, because of formal beneficiary designation rules, over the wife by a second marriage who survived the husband. Hillman v. Maretta, 569 U. S. ___ (2013); see also Ridgway v. Ridgway, 454 U. S. 46 (1981); Wissner v. Wissner, 338 U. S. 655 (1950). This is one example of the general prin- ciple that when the Federal Government acts in the exer- cise of its own proper authority, it has a wide choice of the mechanisms and means to adopt. See McCulloch v. Maryland, 4 Wheat. 316, 421 (1819).
Well, it’s not a federalism case. More Kennedy:
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.
That’s a relief.
Some key bits from Kennedy’s opinion:
The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and dis- abilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect. …
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 Act’s demonstrated purpose is 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. This raises a most serious question under the Constitu- tion’s Fifth Amendment….
By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.
Roberts highlights this in his dissent to make clear that the majority opinion will not provide the basis for a challenge to state laws defining marriage.