Constitutional VulturesU.S. v. Windsor—the case in which the Supreme Court struck down the Defense of Marriage Act (DOMA)—is a carcass from which constitutional flesh-pickers will feast for a very long time. It is one of those cases like Dred Scott v. Sandford or Roe v. Wade that is so uncandid and so laden with gibberish that not even those who like the result can defend the Court’s language with a straight face.

The problems begin with the fact that the case was a collusive one—that is, both Ms. Windsor and the federal government were on the same side. The primary defense of DOMA was not presented by a party at all, but by a majority of Congress acting as “Friends of the Court.” Of course, non-parties do not have the same sort of stake in a case that parties do, which is why the Constitution bars collusive suits from federal court.

The justices tried to put a good face on this, but they couldn’t disguise the fact that because the parties were not adverse to each other, the matter was not truly a “case or controversy” as required by Article III of the Constitution, and therefore should have been dismissed. But as Justice Scalia wrote in his dissent, the majority was “eager—hungry—to tell everyone its view. . . ” And therefore did so.

If the majority’s opinion had a core, it was that DOMA was invalid because the law was the product of “a bare congressional desire to harm a politically unpopular group”—meaning, in this case, homosexuals.  But the Court never actually showed that this was the congressional purpose. (There were no homophobic tirades in Congress during the debates over DOMA.) The Court did note, accurately, that one motivation was moral concern. But moral concern is not the same thing as a bare desire to hurt the alleged transgressor. The truth is often quite the contrary, as every parent, teacher, and clergyman knows.

Anyway, the Constitution contains no specific “anti-bare-congressional desire to harm” clause applying to the federal government.* The Court repeatedly has acknowledged that absence by upholding laws that attack other politically unpopular groups such as racists, the oil and gas industry, and “the rich.”  So one might reasonably ask what part of the Constitution the Court was relying on. The justices never quite told us.

It couldn’t be the Equal Protection Clause, because by its specific terms that provision applies only to the states, not to Congress. It might be the so-called “equal protection component of the Fifth Amendment Due Process Clause”— a formulation invented by the Court in 1954 to nail another politically-unpopular group (segregationists). But the Court didn’t explicitly rely on that, either.

Could the Court be relying on what constitutional scholars call “substantive due process?” But substantive due process is said to invalidate only certain laws that violate long-held traditions and understandings. DOMA not only doesn’t violate long-held tradition, but explicitly supports long-held tradition.

Aside from never telling us just what provision of the Constitution DOMA violated, the Court also never acknowledged several important reasons behind DOMA that had nothing to do with either morality or  “a bare desire to harm a politically unpopular group.” In other words, even if anti-homosexual animus played a role, the “desire” was not “bare.” Among the measure’s purposes:

*    To protect the intended, understood scope of certain federal privileges and exemptions from being altered by changes in state law. The goal of protecting the federal treasury from expanded tax deductions, for example, is obvious.

*    To provide what lawyers call a “choice of law” rule for couples who migrate among states with different marriage laws.

*    To guard against unforeseen social consequences that might arise if states fundamentally altered a social institution of very long standing. (When DOMA was passed, there was talk of expanding the definition of marriage but no state had yet done so.)

The Court’s lack of candor is evident in its failure to acknowledge any of these entirely legitimate purposes.

Some have characterized the Windsor decision as based on federalism—the exclusive right of states to regulate domestic relations issues such as marriage. Would that this were true! But it isn’t.

First, keep in mind that the part of the law invalidated was the portion that defined “marriage” only for existing federal law, such as the meaning of “spouse” in federal estate tax laws. It did not alter state definitions at all.

Second, the Windsor opinion never acknowledged the states’ exclusive power over marriage. On the contrary, it asserted the purported constitutionality of the many federal statutes that meddle in the states’ reserved authority over domestic relations. In fact, Adoptive Parents v. Baby Girl, decided just two days before, implicitly acknowledged the constitutionality of a federal statute that interfered drastically with state domestic relations laws.

The Court mentioned the traditional state authority over domestic relations not to protect federalism, but only as “evidence” that DOMA was the product of a “bare desire to harm.”

The Court also cited as justification “DOMA’s sweep involving over 1,000 federal statutes and a myriad of federal regulations.” But that sweep reflects merely the Court’s own neglect of duty. Had the Court carried out its obligation to enforce the Constitution’s limits on federal power, DOMA might not have been adopted at all—and if adopted it would have had a far narrower “sweep.”

As in cases like Dred Scott and Roe, the Court covers its lack of reasoning and lack of candor with rhetorical bombast. Consider the following:

“The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other.”

What does that mean?

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Or this:

“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 make that Fifth Amendment right all the more specific and all the better understood and preserved.”

Got that?

I might have hoped, at least, that the DOMA decision would have put to rest the absurd but common characterization of this Supreme Court as “conservative.”Incredibly, however, that claim persists even after Windsor.

*An exception may be the requirement of Article I, Section 8, Clause 18 that laws adopted pursuant to incidental congressional powers be “proper,” but the Court does not apply that provision that way.

Rob Natelson

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