A Citizen's Guide to Indiana

I generally feel better when I’m the company of Judge Posner. I’m not always on board with his conclusions, but he’s an awfully smart guy. He hits harder than I did on the majority’s notion of “equal sovereignty” in yesterday’s case striking down a key provision of the Voting Rights Act.

On this concept of “equal sovereignty,” used to justify striking down the VRA because it treated the old Confederacy more harshly than other states in terms of flexibility for changing voting procedures, Judge Posner says, “This is a principle of constitutional law of which I had never heard—for the excellent reason that, as Eric points out and I will elaborate upon briefly, there is no such principle.”

He points out, for example, that some states, like Utah were admitted to the union only on the condition that they outlaw polygamy. Other states did not have their status in the union conditioned on the state of their polygamy laws. Judge Posner is skeptical of the states rights rhetoric from the majority:

That evidence—the record before Congress—should have been the end of this case. For apart from the spurious principle of equal sovereignty, all that the majority had on which to base its decision was tenderness for “states’ rights.” One doubts that this actually is a primary value for any of the justices. The same conservative majority that decided Shelby had rejected a more cogent argument for states’ rights when it held three years ago in McDonald v. City of Chicago that the Second Amendment—a provision of the Constitution designed to secure state autonomy—specifically, the right of states to maintain their own little armies, the militias, against federal abolition—creates rights against states’ limiting gun ownership. It seems that the court’s regard is not for states’ rights in some abstract sense but for particular policies that a majority of justices strongly favors.

Last October, I put up a post about the Second Circuit decision in the case of Windsor v. United States. Today, the United States Supreme Court, in a 5-4 decision, affirmed (pdf) the Second Circuit.

The issue was whether Section 3 of the Defense of Marriage Act (DOMA) was Constitutionally permissible in a case where a lesbian couple had married in Canada and had a marriage recognized in their home state of New York. When one member of the couple died, leaving her entire estate to her wife, because of DOMA, the tax bill was $363,000 more than it would have been for a heterosexual married couple. (The marital exemption in the federal tax code was not available to same sex couples.)

The five member majority for the Supreme Court were Justices Kennedy, Ginsburg, Sotamayor, Breyer, and Kagan joined. In dissent were Justices Roberts, Scalia, Alito, and Thomas. The decision begins with a discussion of the issue of standing. Standing refers to the ability of a person to bring an action in court. Courts don’t want to be in the position (and sometimes, under Article III are not permitted to be) of giving advisory opinions to parties on the same side or to people who have no stake in the litigation. So, for example, I can’t sue the government because I don’t like how it’s treating the Smiths down the road. Here, the Government decided after losing at the District Court that it wasn’t going to defend the constitutionality of DOMA. But, at the same time, it has never issued the tax refund. An organization called BLAG (Bipartisan Legal Advisory Group), part of the U.S. House of Representatives, stepped up to appeal the decision when the Attorney General would not. The court pointed out that there are a couple of flavors of “standing” — jurisdictional and prudential. If the lack of standing is jurisdictional; the court takes the position that Article III deprives them of the power to consider a case. If the lack of standing is prudential, good judicial practice gives them the discretion not to consider a case. (In my opinion, these distinctions end up being fairly arbitrary and applied haphazardly depending on whether court wants to reach the merits or not.)

In any event, the Court decided that there was sufficient standing to overcome both jurisdictional and prudential concerns — there was concrete adversity, inasmuch as the U.S. still retained the tax money and would have to give it back. And, with BLAG participating, the adversaries were contesting the matter vigorously enough to ensure that the positions and issues of both sides were well represented. This matter of standing becomes important because of the decision on the Proposition 8 (pdf) case out of California where proponents stepped in to advocate for Prop 8 after the State of California decided it was no longer interested in doing so. Unlike this case, the Court decided that proponents of Prop 8 didn’t have standing to challenge the District Court’s decision that it was unconstitutional. (Generally, citizens don’t have a particular interest recognized under Article III giving them the authority to litigate on behalf of legislation where the State declines to do so.) The Supreme Court did not endorse the merits of the lower court decision, but it stands for now and Proposition 8 is unenforceable. (Interesting split on the Prop 8 case by the way – the majority were Justices Roberts, Scalia, Breyer, Ginsburg, and Kagan while the minority were Justices Kennedy, Alito, Thomas, and Sotamayor.)

Back to the DOMA case, and on the merits, the Court begins with the presumption that marriage is primarily a state issue and noted the evolving view of same sex marriage in New York and other states. If a state recognizes a marriage between two individuals of the same gender, does it violate the Constitution for the United States to second guess that recognition? The majority said that it does. The Court reasoned that, while the federal government has limited authority to regulate marriage in furtherance of federal policy, DOMA goes further than that limited authority. It adds a directive applicable to over 1,000 federal laws and regulations directed to a class of persons that 12 states (including New York) have sought to protect. This mass of regulations goes too far in stepping on States’ more substantial interest in regulating marriage.

This paragraph seemed central to the Court’s reasoning, but I have to say, I didn’t quite follow it or get a sense it was premised on much in the way of prior authority:

Against this background DOMA rejects the long established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. 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. 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. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.

(Slip opinion at page 18). This part, however, was clear enough, “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.” And, by doing so, the court held, the Federal Government violated the due process and equal protection clauses of the U.S. Constitution under the Fifth and Fourteenth Amendments.

The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.
. . .
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.

(Slip opinion at 20-21). And, while anchoring the decision on a State’s right to define marriage; it goes on to take a very dim view of treating gays differently than heterosexuals; making me wonder how this plays out if a federal law attempts to limit a State’s ability to define marriage in a way that discriminates. (This feels a little like an opinion written by committee; as if the beginning part about State’s rights was from the more conservative wing of the majority and now we’re entering into passages designed to win the approval of the more liberal wing.)

DOMA in structs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. 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.

Again, when a state DOMA case comes along, I don’t see how you reconcile that language about the federal DOMA’s lack of legitimate purpose and high minded prose about human dignity with the competing language about a state’s right to regulate marriage.

That means, I think, Indiana’s “defense of marriage” act and anticipated state constitutional amendment are more vulnerable to attack under the federal Constitution than I would have anticipated. The clock is ticking on that state Constitutional amendment. It might get ratified by a majority in a referendum if it takes place in 2014. Beyond that, the demographics seem to be rapidly moving against support for such a measure.

Update A line from Justice Scalia’s dissent:

The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a “‘bare . . . desire to harm’” couples in same-sex marriages.

I’m pleased with the outcome; but Justice Scalia does a fairly good job of pointing out that the majority’s analysis isn’t all that it could be. Certainly, I would not anticipate success if I submitted a brief with an argument that looked like the court’s opinion. On the other hand, when he favors the outcome, Justice Scalia has shown himself content to go a little easier on the analysis if it leads somewhere unfavorable.

In 2006, Congress renewed a provision of the 1964 Voting Rights Act that the United States Supreme Court has struck down. In effect, the judiciary is second guessing Congress under cover of what amounts to a states rights argument. Of course, in political discourse, both “states rights” and “judicial activism” are applied so selectively that they mostly boil down to “stuff I like” and “stuff I don’t like.”

Lyle Denniston, legal analyst for SCOTUSblog breaks down the opinion here. The opinion is Shelby County (Alabama) v. Holder. One of the main issues was section 4 of the act which provided a coverage formula that subjected certain areas of the country – mostly the old Confederacy – to special restrictions given the historical prevalence of racist voter discrimination. In 2006, the U.S. Congress renewed that formula for another 25 years.

Certain states have to get pre-clearance from the federal government before they can change voting procedures. The Supreme Court, in today’s decision, complained that this is unfair because it deprives these states of equal sovereignty under . . . well, these strict constructionists don’t cite anything. But, let’s say that this was the default setting under the Constitution. It’s not an unreasonable declaration — even if it might come out of a penumbra of some sort.

But, the thing is, all of the covered states are south of the Mason-Dixon line. There was an incident, well known in some historical circles, where Southern states committed treason against the United States in pursuit of their state’s rights to allow some individuals to own other individuals. After their rebellion was put down, these states spent the better part of a century imposing Jim Crow laws. Slavery and Jim Crow laws were prevalent in these areas for approximately 450 years. The Voting Rights Act is about 50 years old, and, in 2006, Congress made a determination that a formula that covered a number of Confederate States was still appropriate. The arbiter of facts and credibility in a judicial situation – the District Court – agreed. Apparently reweighing the facts, substituting its own judgment for that of Congress and the District Court, the Supreme Court has determined that section 4 is unconstitutional — based on what Constitutional provision, I remain uncertain.

The Supreme Court has used its notion of “equal sovereignty” to substitute its judgment for that of Congress. It is difficult to square that with a stated preference for judicial restraint; particularly when one considers that the Supreme Court’s main complaint is that Congress is using decades old data to combat a centuries old problem.