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View Diary: Elena Kagan proves that DOMA's original intent was bigotry, not tradition (129 comments)

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  •  Here's a lawyer's take on the narrowness issue (6+ / 0-)

    of the arguments:

    Of course, I would love to see this case, as well as the Prop 8 case, decided on Equal Protection grounds, because I believe both Prop 8 and DOMA don't pass even the lowest level of Equal Protection scrutiny, let alone the highest level of scrutiny that I believe should be applied.

    But it is a time-honored principle of constitutional decisionmaking that a court should not reach a constitutional issue unless it is necessary to do so to decide the case.

    Further, if there are reasons why the case should not even be before the Court, the case or appeal should be dismissed without reaching the merits even if both parties are left without the relief they seek. Lack of "subject matter jurisdiction" due to the lack of a live "case or controversy," otherwise known as "lack of standing," is a classic basis for dismissing a case or appeal, even when (unlike the Prop 8 and DOMA cases, the nominal plaintiffs and defendants strenuously disagree on the outcome).  

    Dismissals for lack of subject matter jurisdiction/standing/justiciability rest on the premise that, because rulings on constitutional decisions have such far-reaching consequences, such issues should only be decided when harm to one or more of the parties cannot be avoided except by reaching the merits. The courts' constitutional decisionmaking resources should be conserved, under these principles, and saved for cases in which it "really" matters. And for these purposes, "really matters" means not just that a decision would decide the rights of a whole mass of people who are not before the court. "Really matters" means that both of the actual parties' rights will be affected.

    Now, clearly in the Prop 8 and DOMA cases, the rights of the plaintiffs will be affected by a ruling.  The Prop 8 plaintiffs cannot marry in California.  The DOMA plaintiffs are being denied federal tax and other benefits. But the defendants -- the State of California and the US government, respectively -- agree with the plaintiffs that the provisions in question are unconstitutional.  The intervening parties that have taken up the cudgels of defending Prop 8 and DOMA will not be benefitted if they win the case, or harmed if they lose case, in any but the most intangible, inchoate way. So, the principle of conserving constitutional decisionmaking resources suggests that the California and US governments should just stop enforcing Prop 8 and DOMA, in accordance with lower court decisions overturning them. That would save the Supreme Court's resources, and still permit California same sex couples to marry, and permit legally married same sex couples across the nation to receive federal benefits available only to married couples.

    Why haven't they done so?  That question got a lot of attention from the Justices, especially but not exclusively from the conservative ones, yesterday and today.  In particular, this morning the Executive Branch came under fairly withering judicial criticism for not just standing down from enforcing DOMA.  Both Scalia and Kennedy questioned why the Executive Branch didn't just have the courage of its convictions and refuse to enforce a law it deems unconstitutional.  Indeed, these justices seemed to suggest that the Executive could decide, even without a lower court ruling, that a statute was unconstitutional and refuse to enforce it.

    Well, one reason might be that if a US president refused to enforce DOMA, he might well be impeached by the House. And then the Senate would have to "try" him on the charge of failing to faithfully execute the laws. And absent a judicial ruling, a Senate (perhaps not this one, but certainly a hypothetical Senate run by an opposition party) could convict a president for not enforcing what it considered to be an important statute.

    Breyer and Alito (!) suggested that a chief executive had an interest in obtaining the highest appellate ruling he could before deciding not to enforce a duly passed statute.  But the core conservative justices seemed to think (not that this was explictly stated) that the chief executive should have been willing to risk impeachment and conviction by acting unilaterally to stop enforcing a law that the Executive Branch unilaterally decided was unconstitutional.  

    Assuming they get past the standing issue, the justices could also "conserve" constitutional decisionmaking resources by deciding the DOMA case on federalism grounds rather than Equal Protection grounds. This, I think, is what will actually happen with the DOMA case. Now, one could say that deciding based on federalism grounds -- that is, that the federal government intruded upon the powers reserved to the states in excluding from the federal definition of marriage certain couples legally married under state laws -- would not really conserve constitutional decisionmaking resources, because federalism is itself a constitutional issue. But the principles underlying such a federalism ruling wouldn't break new constitutional ground.  By contrast, resolving the issue of whether sexual orientation discrimination is subject to ordinary ("rational basis") or strict ("compelling state interest") scrutiny would require making new constitutional law. So the conservation principle would still be served by such a ruling.

    As I said at the outset, I think the Court could decide it has standing. But given the traditional reluctance of the Court to make new law if it can avoid doing so, couple with the reluctance of even the conservative justices to write an opinion that they must know will someday be seen as more like Plessy v. Ferguson than Brown v. Board of Education, I think that they will punt, if not to standing, than to federalism.

    •  A huge hole in the "just stop enforcing DOMA" (2+ / 0-)
      Recommended by:
      litigatormom, basket

      argument---apparently suggested by Roberts---is (in addition to possible impeachment) that the next president would have the option to just start enforcing the law again.

      Kind of amazing the the Chief Justice of the United States would suggest that the way to deal with an unconstitutional statute is to ask the nice president not to enforce it.

      Resist much, obey little. ~~Edward Abbey, via Walt Whitman

      by willyr on Wed Mar 27, 2013 at 02:51:18 PM PDT

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      •  Yes, that is a big hole (1+ / 0-)
        Recommended by:

        Of course, if a subsequent president decided to enforce it again, the executive branch would be defending the law in the next lawsuit, ensuring there is a case or controversy.

        The fact that we don't have presidents-for-life also pokes a hole in Roberts' assertion that the proper thing for a president to do if s/he thinks a law is unconstitutional is to not sign it.  That doesn't help the president if the law was signed by a predecessor.

    •  Does a decision based on federalism mean (1+ / 0-)
      Recommended by:

      DOMA is struck down (at least section 3) because it's up to the states, not congress, to define marriage? So couples legal marriages will be recognized for federal benefits based on their state's definition?

      (Then there's the complicating issue of couples legally married in one state moving to another where their marriage is not recognized.)

      •  If DOMA is struck down on federalism grounds (3+ / 0-)
        Recommended by:
        basket, mmacdDE, BlueStateRedhead

        then states will define who may be granted a marriage license within their respective borders.

        As for what happens if a same sex couple were to move to a state that does not recognize marriage, the answer is, it depends. Traditionally, states have recognized any marriage performed validly under the laws of the state or country where the couple was married.  For example, first cousin marriage isn't legal in all states, but first cousins married in a state where it is permitted are considered validly married if they move to a state where a marriage license are not issued to first cousins.  The state would grant "full faith and credit" to the marriage licenses issued by sister states, just as would enforce civil judgments issued by the courts of other states, even if the judgment arises under law that doesn't apply in the enforcing state.  

        When it comes to same sex marriage, it's a little tricker (although of course it shouldn't be). For example, New York State recognized same sex marriages legally performed elsewhere even before it began issuing marriage license to same sex couples a couple of years ago. Indeed, Edie Windsor has standing in this case precisely because NY recognized her 2007 Canadian marriage to Thea Speyer even though same sex marriages could not be performed within the state.  By contrast, some states have passed laws explicitly saying that they will not recognize same sex marriages performed in other states.  I think the better view would be that if DOMA is struck down, a same sex marriage would still be treated as a valid marriage for federal purposes even if the couple moved to a state where they could not have been married in the first place. But to the extent that there were state law benefits for married couples, whether they would qualify for those would depend on whether the state recognized ALL sister state marriages, or excluded same sex marriages from recognition.

    •  you make me feel so smart, there's a conxtitution (0+ / 0-) be unxerstood and Ica be alittle bit part of it. Thnx litmom. Have you thgt of thebench iin your future?
      Sorry for fat fingered typos

      "Are you bluish? You don't look bluish," attributed to poet Roger Joseph McGough, for the Beatles' Yellow Submarine (1968).

      by BlueStateRedhead on Wed Mar 27, 2013 at 06:09:38 PM PDT

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