Tuesday, July 23, 2013

The Supreme Court’s Windsor Decision – both more and less than you might think! By Mike John

The Supreme Court’s Windsor Decision – both more and less than you might think
On June 26, 2013, the Supreme Court handed down one of its most anticipated decisions in recent memory, United States v. Windsor. The Court struck down a portion of the Defense of Marriage Act (“DOMA”); specifically, Section 3, which defined “marriage” as a union between one man and one woman. This decision is widely hailed by gay-rights groups as among the most important civil rights cases in living memory. The case does have its limits, however. Only Section 3 of DOMA, which prohibited the federal government from recognizing same-sex marriage for the purpose of applying federal law, was struck down; Section 2, which allows States to refuse to recognize same-sex marriages performed under the laws of other States, is not affected. No doubt, that issue will arise in a future case.
My first time actually reading the decision, I largely skipped over the rather lengthy jurisdictional aspects (the fact that I can actually understand some of it does not make it any less boring). Like most people, I suspect, my attitude was: let’s get to the good stuff. After quite a few pages, I finally got to the “good stuff” in the majority decision, and when finished reading it thought, O.K., that all sounds pretty reasonable.
Then, I read Justice Scalia’s dissent. He writes: “[T]he plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?"
Well, that was a surprise. The Supreme Court is supposed to decide actual cases; it is not supposed to issue “advisory opinions”. Here, the United States (the Justice Department), as Defendant, never wanted to defend DOMA’s Section 3. It agreed with the original decision of the District Court for the Southern District of New York (the first decision, in which Windsor prevailed) and it agreed with the Court of Appeals for the Second Circuit (the federal Court covering all of New York and two small New England States), in which again, Windsor prevailed. There was no disagreement – no controversy - between the parties of this case. So how the heck does a winning plaintiff appeal her own victory? Maybe, I thought, I’d better go back and more carefully read the majority opinion.
So that’s what I did, and soon better understood the importance of a third party, an “interested party”, the inaptly named “Bipartisan Legal Advisory Group” (“BLAG”). This group is comprised of members of Congress who (unlike the actual parties in this case) wanted to defend the constitutionality of DOMA’s Section 3. The involvement of BLAG, together with some other circumstances, was enough for the majority (and Justice Alito, who otherwise dissented) to rule that it was proper for the Court to hear the case. It should also be noted that neither of the “real” parties objected to the appeals. So how come the Supreme Court accepted an appeal when the two parties both were happy with the outcome of the lower court’s decision? Writing for the majority, Justice Kennedy explains: "Here, BLAG’s substantial adversarial argument for §3’s constitutionality satisfies prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree."
There you have it. Even the majority admits that “the principal parties agree” to the decision below. Justice Scalia is known for his rhetorical questions, but the question “what are we doing here?” deserves an answer. One answer might be “we are using the Court to decided a question of public policy” (which itself is not a legally sufficient reason for the Court to accept this case), but the more succinct and accurate answer is: “the parties want to take a short-cut”. Make no mistake; this is what it’s all about. After all, why actually pass a law, when you have a Supreme Court willing to “interpret” the Constitution the way you want?
Passing a federal law is a very difficult thing to do, and well it should be. Laws are voted for (or against) by elected officials, and these elected officials answer to their respective party leaders, to those from whom they receive contributions, and to their constituents (probably in that order). One common strategy is to have a law sponsored by both a Democrat and a Republican, with the implied message being: this is simply a good law, for those sitting on BOTH sides of the aisle. But to get the votes, these laws typically include all kinds of provisions, and that's why they are hundreds, even thousands, of pages long. And even after they are passed, they take years to fully develop. New regulations )designed to implement the various provisions of the laws) are constantly being proposed, added, deleted, or amended; various committees and experts are consulted, sometimes public comment is solicited, and of course there are lobbyists present at every step (before and after the law is passed) whose purpose is to that law evolves into something most favorable to their particular industry. And even after a federal law is passed, that law is still a fragile thing. It can be weakened or even rescinded by a later Congress, perhaps after an election. And some, or even all of it, can be struck down by the Supreme Court as unconstitutional.
Now, compare this process with the Supreme Court. Its decisions are not expensive, they do not take that long (relative to the lawmaking process), and perhaps most importantly of all, they are far more permanent. The Supreme Court is the final authority on all things constitutional, and once the Court rules, there are not a lot of options for those who don’t like that ruling. Either the Court overturns its own decision later (or “distinguishes” it, which is often barely more than a face-saving gesture because nobody likes to admit s/he was wrong), or the Constitution itself must be amended. Neither of these things happen very often. So there's the choice; either pass a law (time-consuming, expensive, uncertain, and subject to being stricken by the Supreme Court), or get the Supreme Court to rule in your favor (cheap, quick, and with a very large degree of finality). This is no-brainer - use the Supreme Court, if you can, to further your agenda.
But there is still a problem; the Court is not supposed to be making policy decisions; it is supposed to “say what the law is”. When Edith Windsor first won her case, at the District Court level, that decision went in her favor, and became legal precendent for federal courts in the Southern District of New York only (i.e., it would be considered “mandatory authority” for that jurisdiction). Other courts in other jurisdictions, even other parts of New York, would not be bound by this decision, although they might be influenced by it (at best, it could be cited in those jurisdictions as “persuasive authority”). But this just wasn’t good enough for Edith Windsor and her supporters. For them, it wasn’t enough that she won – they wanted the ruling to be “mandatory authority” for the whole country, and not just for one part of one state.
And let's not forget, it was always possible for Congress to rescind some or all of the Defense of Marriage Act, before and after the first court's decision. But that would have taken time, and it would required actual votes from actual members of congress (imagine that - democracy at work!).
Basically, Windsor wanted to bypass the normal, democratic lawmaking procedures. The fact that the Court is only supposed to hear actual disputes – well, that was regarded as an inconvenient and perhaps not insurmountable legal nicety. The ruling in favor of national federal recognition of gay marriage was “the right thing to do”, right?
Wrong – at least, not from this case. If there had been contrary rulings from different Courts of Appeals on similar issues, then yes, the Supreme Court should have taken this case. If the lower court’s decision had been appealed by a losing party, then (maybe) the Supreme Court should have taken this case. But when there is no actual controversy, this case is a power grab by the Court - nothing less than “legislating from the bench”, with the willing assistance from the parties themselves.
To be clear, my problem is not with the decision itself, but the fact that the Court accepted the case in the first place. I'm a libertarian, and I voted in favor of legal gay marriage in Maryland. If anything, I don’t think “marriage equality” goes far enough. I would argue that ANY two adults who are uniquely and exclusively devoted to one another, regardless of whether their relationship is sexual, should be afforded the same benefits as a married couple (but we’ll save that argument for another day).
I don’t know if this case will lead to a significant change in the types of cases the Court accepts, but I hope it does not. Even so, this decision (that is, the Court’s decision to accept this case) provides clear evidence that the Court is as “activist” as ever. And worse – it is activist with the full blessing of litigants themselves (including the Justice Department, which ultimately means the President). Now more than ever, potential litigants can view the Supreme Court as a more efficient, more permanent, and less expensive alternative to actually passing (or rescinding) laws. This is not the proper role for the Supreme Court, and represents a dangerous and warped view of our legal system. “I respectfully dissent”.

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