The Supreme Court’s twin decisions in United States v. Windsor (DOMA) and Hollingsworth v. Perry (Proposition 8) have clearly altered the terms of the debate over gay marriage in the United States. Along the way, they have shown the serious weaknesses in the Supreme Court’s result-oriented approach to constitutional law.
Windsor addressed the two key provisions of the Defense of Marriage Act, passed in 1996 with broad majorities (85 votes in the Senate and 342 in the House). Section 2 provides that no state should be required to give any legal effect to a same-sex marriage concluded in a different state. Section 3, struck down in Windsor, held that for all matters of federal law “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
California’s Proposition 8, passed in 2008 to overrule the California Supreme Court, which overturned the ban on same-sex marriage in California, is even shorter: “Only marriage between a man and a woman is valid or recognized in California.”
The Supreme Court’s decisions transformed the debate over gay marriage in the United States. Unfortunately, how the Court reached its result on matters of constitutional procedure should be disturbing to anyone who cares about constitutional law, regardless of his or her personal views on same-sex marriage.
SCOTUS Trips Up on Standing
The Supreme Court has long held that the judicial power has a standing requirement that lies in the path of any claimant who comes to federal court. That requirement is said, incorrectly I believe, to derive from Article III of the U.S. Constitution, which states that “The Judicial Power shall extend to all cases in law and equity. . .” The Supreme Court reads that provision to say that only parties with a discrete personal injury may sue in federal court. But it steadfastly refuses to hear persons who want to raise facial constitutional challenges to the law.
The requirement of particularized injury is met for the two plaintiffs in Perry and Windsor. Ms. Perry sued to get a marriage license. Ms. Windsor sued to recover from the federal treasury the estate tax paid after she was denied the benefit of the marital deduction when she had received the entire estate of her long-time partner Edith Spyer, whom she had married under New York law. The United States refused to repay the money, but simultaneously refused to defend Section 3 of DOMA from constitutional attack.
In the Federal action, the Supreme Court gave a group of Republicans in the House, the Bipartisan Legal Advisory Group, the right to defend the Treasury’s opinion, leaving it unclear whether the decision in favor of Windsor could have been challenged if the House had followed the lead of the President and the Senate. Just that situation came to pass in Perry—it was dismissed—when a five-four vote in the Supreme Court held that private interveners lacked standing to appeal the case within the federal system because they only had an abstract, and not a pocketbook, interest in the case, and could not therefore step in when the state bowed out.
So the litigation took a bizarre turn. It was not as though the District Court judgment was voided when the appeal was aborted. That lower court decision stood because no one had standing to challenge the law on appeal. Yet why should the willful refusal of public officials to defend their own law let the state win by default? Surely the Supreme Court should think twice before upsetting democratic institutions by conferring this veto power on state officials.
This regrettable fiasco, moreover, need not take place at all under any coherent account of the standing doctrine. Article III of the U.S. Constitution extends the appellate jurisdiction of the Supreme Court to cases “in law and equity.” The word “equity” was not some accidental afterthought, for these courts don’t usually award damages. They typically oversee complex transactions of corporations and large associations, including cases that challenge executives and boards of directors for acting beyond the delegated powers (ultra vires, is the Latin phrase, still in common use). No individual group member has a distinctive interest, which is why any group member can raise these challenges. The alternative is to let officers and directors disobey charter provisions with perfect impunity.
That same governance issue arises in cases involving the executive or legislative branches of the federal government. It is not an acceptable jurisprudence to keep courts from hearing cases of vital importance to the community at large. Citizens should be able to bring a constitutional challenge in equity even if they suffer no distinct injury. Both of the marriage cases belonged at the Supreme Court level, but the Prop 8 one was passed by in silence.
The Constitutional Merits
By a five-four vote, the Supreme Court struck down section 3 of DOMA. Justice Anthony Kennedy wrote the opinion for the majority. Key to understanding his elusive opinion is Justice Kennedy’s ambiguous attitude to the role of tradition in constitutional adjudication. The issue is one with a long pedigree, and relates closely to the level of scrutiny that is invoked in constitutional deliberation.
Virtually all of the historical challenges to legislation were the result of conscious departures from traditional common law rules, including the early twentieth-century challenges to the wage and hour laws. Many of the judges who struck down those statutes did so because they were anti-competitive labor statutes in disguise, intended to throttle the competition that low-pay or non-union workers gave to the rising power of trade unions.
The stinging dissent of Justice Oliver Wendell Holmes in Lochner v. New York was written to uphold New York’s maximum hour law:
I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.
Tradition saves the day in Holmes’s last clause.
The DOMA sponsors also appealed to that deep sense of tradition when they wrote “[T]he bill amends the U.S. Code to make explicit what has been understood under federal law for over 200 years; that a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex.”
Consistent with the Holmes view in Lochner, the proponents of DOMA did not have to make a normative defense for what was a well-nigh uniform practice. They just had to show the dominant popular sentiment for the law under a relaxed “rational basis” test. The same reasoning that Holmes had articulated in Lochner could have also protected Proposition 8 from constitutional extinction in Perry.
Justice Kennedy thus ratified a sea change in constitutional jurisprudence by exposing DOMA to the tough scrutiny of legislation that reaffirms traditional values that had once been confined to legislation that transformed those expectations. Justice Kennedy could have said openly that tradition should not count, or at least not count for very much, on the constitutional scales of justice. But on this occasion, his argument against DOMA was not the straight up “equal protection” argument that the Court finessed by invoking standing in Perry.
Rather, Kennedy’s lead argument (in this age of boundless federal power) was that the definition of marriage is properly left to the states. And why: “By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States.” Oh. What, then, of Proposition 8?
So a question then arises: If the allocation of power between the two levels of government should be controlled by tradition, why does the definition of marriage traditionally used by all states now fail at the federal level? The point is particularly odd in this context given that DOMA says nothing about how states regulate their own definitions of marriage, but only determines how the federal government defines marriage for the purpose of distributing federal benefits—which has to be regarded as a core federal function. Of course, the federal government can follow state definitions, but it need not, and as Justice Kennedy himself notes, does not do so in defining marriage in immigration cases.
At this point, moreover, Justice Kennedy only compounds the confusion. If the federalism issue controls, those states that adhere to traditional definitions of marriage now control how the federal government distributes its benefits, so that it appears, at least for a nanosecond, that the United States could not constitutionally define marriage to include same-sex couples under DOMA for potential recipients who live in states that follow the traditional definition of marriage.
But don’t believe that this argument would ever win. Behind Kennedy’s federalism argument lies a strong reaffirmation of his long-standing view of the moral imperative to recognize same-sex marriages. No law, he thinks, that results in the disparate treatment of one group of people is ever justifiable. Indeed, there are points where he goes so far as to say that anyone who defends the traditional definition of marriage is harming a politically unpopular group, as if that unthinking point of view captures the sentiment of all of DOMA’s erstwhile supporters, some of whom were searching for tenable compromises to difficult questions.
Note that the federalism rationale is quite different from the equal protection argument used to prop it up. Indeed, Kennedy’s federalism rational necessarily tolerates cutting off federal benefits to same-sex couples living in states that only recognize traditional marriages. Imagine the outrage if President Obama announced that he had a constitutional obligation under Windsor to acquiesce in the traditional definition adopted in dispensing federal benefits to recipients who lived in states that banned same-sex marriage.
It won’t happen. Secretary of Defense Chuck Hagel issued an official announcement that “The Department of Defense intends to make the same benefits available to all military spouses—regardless of sexual orientation—as soon as possible.” The clever feature about his announcement is that the current laws of standing don’t allow for anyone to challenge this misreading of DOMA. Ironically, selective application of DOMA would no longer be an issue if the Supreme Court had found that the interveners in Perry had standing. Justice Kennedy dissented to that standing argument in Perry, along with Justices Alito, Thomas, and Sotomayor.
At this point, the status of Section 2 of DOMA is also in limbo, for Kennedy’s federalism rationale supports letting each state decide whether to recognize same-sex marriages solemnized in other states. That provision can survive Windsor but it could not survive if the traditional definition of marriage falls under the Equal Protection Clause.
Why Justices Ginsburg, Breyer, and Kagan were not prepared to pull the trigger in Perry is only a matter of speculation. Perhaps they think most states will fall into the same-sex column. But my own hunch is that it is only a matter of time before the Supreme Court strikes down the traditional marriage definitions under the equal protection rational that Justice Kennedy advanced in Windsor.
I still remain uneasy. As I have said previously, my own libertarian instincts lead me to think that same-sex marriage is a legislative matter. After all, the states are often called laboratories of democracy. But now, those experiments are on a shorter leash. Now that the constitutional stampede is underway, the issue ducked in Perry will surface again at the Supreme Court once some state has the temerity to uphold its traditional definition of marriage against an equal protection analysis.
When that happens, the same five-to-four majority that decided Windsor will strike again. On an issue that is this close to the personal identity of so many people, constitutional passions will win out over constitutional principles no matter what the doubters say.
Richard A. Epstein, Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A. Tisch Professor of Law at New York University, and senior lecturer at the University of Chicago, researches and writes on a broad range of constitutional, economic, historical, and philosophical subjects. He has taught administrative law, antitrust law, communications law, constitutional law, corporate law, criminal law, employment discrimination law, environmental law, food and drug law, health law, labor law, Roman law, real estate development and finance, and individual and corporate taxation. His publications cover an equally broad range of topics. His most recent book, published in 2013, is The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2013). He is a past editor of the Journal of Legal Studies (1981–91) and the Journal of Law and Economics (1991–2001).