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UNITED STATES v. WINDSOR, Judge Scalia's dissenting opinion

SUPREME COURT OF THE UNITED STATES


Syllabus

UNITED STATES v. WINDSOR, EXECUTOR OF THE  
ESTATE OF SPYER, ET AL.  

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

No. 12–307.   Argued March 27, 2013—Decided June 26, 2013

The State of New York recognizes the marriage of New York residents
Edith Windsor and Thea Spyer, who wed in Ontario, Canada, in
2007.  When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the federal estate tax exemption for surviv- ing spouses, but was barred from doing so by §3 of the federal De- fense of Marriage Act (DOMA), which amended the Dictionary Act—a law providing rules of construction for over 1,000 federal laws and the whole realm of federal regulations—to define “marriage” and “spouse” as excluding same-sex partners.  Windsor paid $363,053 in estate taxes and sought a refund, which the Internal Revenue Service denied.  Windsor brought this refund suit, contending that DOMA vi- olates the principles of equal protection incorporated in the Fifth Amendment.  While the suit was pending, the Attorney General noti- fied the Speaker of the House of Representatives that the Depart- ment of Justice would no longer defend §3’s constitutionality.  In re- sponse, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives voted to intervene in the litigation to defend §3’s constitutionality.  The District Court permitted the intervention.  On the merits, the court ruled against the United States, finding §3 un- constitutional  and  ordering  the  Treasury  to  refund Windsor’s  tax with interest.  The Second Circuit affirmed.  The United States has not complied with the judgment.
 

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES

 

No. 12–307


UNITED STATES, PETITIONER v. EDITH SCHLAIN WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE SECOND CIRCUIT

[June 26, 2013] 

JUSTICE  SCALIA,  with  whom  JUSTICE  THOMAS  joins, and with whom THE  CHIEF  JUSTICE  joins as to Part I, dissenting.
This case is about power in several respects.  It is about the power of our people to govern themselves, and the power of this Court to pronounce the law.  Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former.  We have no power to decide this case.   And even if we did, we have no power under the Constitution to invalidate this democratically adopted leg- islation.   The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.



The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case.  Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives.  They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete

 


2                               UNITED STATES v. WINDSOR

SCALIA, J., dissenting

“Cases” and “Controversies.” Yet the plaintiff and the Gov- ernment 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?
The answer lies at the heart of the jurisdictional portion of today’s opinion, where a single sentence lays bare the
majority’s vision of our role.  The Court says that we have
the power to decide this case because if we did not, then our “primary role in determining the constitutionality of
a law” (at least one that “has inflicted real injury on a
plaintiff ”) would “become only secondary to the President’s.” Ante, at 12.  But wait, the reader wonders—Windsor won below, and so cured her injury, and the President was glad to see it.  True, says the majority, but judicial review must march on regardless, lest we “undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial depart- ment to say what the law is.”   Ibid. (internal quotation marks and brackets omitted).
That is jaw-dropping.  It is an assertion of judicial su- premacy over  the  people’s  Representatives in  Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empow- ered to decide all constitutional questions, always and every- where “primary” in its role.
This image of the Court would have been unrecognizable to those who wrote and ratified our national charter. They
knew well the dangers of “primary” power, and so created
branches of government that would be “perfectly co- ordinate by the terms of their common commission,” none
of which branches could “pretend to an exclusive or supe-
rior right of settling the boundaries between their respec- tive powers.”  The Federalist, No. 49, p. 314 (C. Rossiter ed. 1961) (J. Madison).   The people did this to protect

 


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SCALIA, J., dissenting

themselves.  They did it to guard their right to self-rule against the black-robed supremacy that today’s majority finds so attractive.   So it was that Madison could confi- dently state, with no fear of contradiction, that there was nothing of “greater intrinsic value” or “stamped with the authority of more enlightened patrons of liberty” than a government of separate and coordinate powers.   Id., No.
47, at 301.
For this reason we are quite forbidden to say what the law is whenever (as today’s opinion asserts) “ ‘an Act of
Congress  is  alleged  to  conflict  with  the  Constitution.’ ”
Ante, at 12.  We can do so only when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party.  The “judicial Power” is not, as the major- ity believes, the power “ ‘to say what the law is,’ ” ibid., giving the Supreme Court the “primary role in determin- ing the constitutionality of laws.”  The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit. See, e.g., Basic Law for the Federal Republic of Germany, Art. 93.  The judicial power as Americans have understood it (and their English ancestors before them) is the power to  adjudicate,  with  conclusive  effect,  disputed  govern- ment claims (civil or criminal) against private persons, and disputed claims by private persons against the govern- ment or other private persons.   Sometimes (though not always) the parties before the court disagree not with regard to the facts of their case (or not only with regard to the facts) but with regard to the applicable law—in which event (and only in which event) it becomes the “ ‘province and duty of the judicial department to say what the law is.’ ” Ante, at 12.
In other words, declaring the compatibility of state or federal laws  with  the  Constitution is  not  only  not  the “primary role” of this Court, it is not a separate, free-


 


4                               UNITED STATES v. WINDSOR

SCALIA, J., dissenting

standing role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us.   Then, and only then, does it become “ ‘the province and duty of the judicial department to say what the law is.’ ”   That is why, in 1793, we politely de- clined the Washington Administration’s request to “say what the law is” on a particular treaty matter that was not the subject of a concrete legal controversy.  3 Corre- spondence and Public Papers of  John Jay 486–489 (H. Johnston ed. 1893).  And that is why, as our opinions have said, some questions of law will never be presented to this Court, because there will never be anyone with standing to bring a lawsuit.  See Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 227 (1974); United States v. Richardson, 418 U. S. 166, 179 (1974).  As Justice Bran- deis put it, we cannot “pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding”; ab- sent a “ ‘real, earnest and vital controversy between indi- viduals,’ ” we have neither any work to do nor any power to do it.  Ashwander v. TVA, 297 U. S. 288, 346 (1936) (con- curring opinion) (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339, 345 (1892)).   Our authority begins and ends with the need to adjudge the rights of an injured party who stands before us seeking redress. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992).
That is completely absent here.   Windsor’s injury was cured by the judgment in her favor.   And while, in ordi- nary  circumstances, the  United  States  is  injured  by  a directive to pay a tax refund, this suit is far from ordinary. Whatever injury the United States has suffered will surely not be redressed by the action that it, as a litigant, asks us to take.  The final sentence of the Solicitor General’s brief on the merits reads:  “For the foregoing reasons, the judg- ment of the court of appeals should be affirmed.”  Brief for United States (merits) 54 (emphasis added).  That will not cure the Government’s injury, but carve it into stone.  One


 


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SCALIA, J., dissenting

could spend many fruitless afternoons ransacking our library for any other petitioner’s brief seeking an affir- mance of the judgment against it.1     What the petitioner United States asks us to do in the case before us is exactly what the respondent Windsor asks us to do: not to provide relief from the judgment below but to say that that judg- ment was correct.  And the same was true in the Court of Appeals: Neither party sought to undo the judgment for Windsor, and  so  that  court  should  have  dismissed the appeal (just as we should dismiss) for lack of jurisdiction. Since both parties agreed with the judgment of the Dis- trict Court for the Southern District of New York, the suit should have ended there.   The further proceedings have been a contrivance, having no object in mind except to ele- vate a District Court judgment that has no precedential effect in other courts, to one that has precedential effect throughout the Second Circuit, and then (in this Court) precedential effect throughout the United States.
We have never before agreed to speak—to “say what the law is”—where there is no controversy before us.   In the
more than two centuries that this Court has existed as an
institution, we have never suggested that we have the power to decide a question when every party agrees with
both its nominal opponent and the court below on that
question’s answer.    The  United States  reluctantly con- ceded that at oral argument. See Tr. of Oral Arg. 19–20.
The closest we have ever come to what the Court blesses
today was our opinion in INS v. Chadha, 462 U. S. 919 (1983). But in  that case, two  parties to  the litigation


——————
1 For an even more advanced scavenger hunt, one might search the annals of Anglo-American law for another “Motion to Dismiss” like the one the United States filed in District Court: It argued that the court should agree “with Plaintiff and the United States” and “not dismiss” the complaint.  (Emphasis mine.)  Then, having gotten exactly what it asked for, the United States promptly appealed.


 


6                               UNITED STATES v. WINDSOR

SCALIA, J., dissenting

disagreed with the position of the United States and with the court below: the House and Senate, which had inter- vened in the case.  Because Chadha concerned the validity of a mode of congressional action—the one-house legis- lative veto—the House and Senate were threatened with destruction of what they claimed to be one of their institu- tional powers.  The Executive choosing not to defend that power,2 we permitted the House and Senate to intervene. Nothing like that is present here.
To be sure, the Court in Chadha said that statutory aggrieved-party status was “not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional.”  Id., at 930–931.  But in a footnote to that statement, the Court acknowledged Arti- cle III’s separate requirement of a “justiciable case or controversy,” and stated that this requirement was satis- fied “because of the presence of the two Houses of Con- gress as adverse parties.”  Id., at 931, n. 6.   Later in its opinion, the Chadha Court remarked that the United States’ announced intention to  enforce the  statute also sufficed to permit judicial review, even absent congres- sional participation. Id., at 939.  That remark is true, as a description of the judicial review conducted in the Court of Appeals, where the  Houses of  Congress had  not  inter-


——————
2 There  the  Justice  Department’s  refusal  to  defend  the  legislation was in accord with its longstanding (and entirely reasonable) practice of declining to defend legislation that in its view infringes upon Presiden- tial powers.   There is no justification for the Justice Department’s abandoning the law in the present case.  The majority opinion makes a point of scolding the President for his “failure to defend the constitu- tionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions,” ante, at 12.  But the rebuke is tongue- in-cheek, for the majority gladly gives the President what he wants. Contrary to all precedent, it decides this case (and even decides it the way the President wishes) despite his abandonment of the defense and the consequent absence of a case or controversy.


 


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vened.  (The case originated in the Court of Appeals, since it sought review of agency action under 8 U. S. C. §1105a(a) (1976  ed.).)     There,  absent  a  judgment  setting  aside the  INS  order,  Chadha  faced  deportation.    This  pas- sage of our opinion seems to be addressing that initial standing in the Court of Appeals, as indicated by its quo- tation from the lower court’s opinion, 462 U. S., at 939–
940.    But  if  it  was  addressing standing to  pursue the appeal, the remark was both the purest dictum (as con-
gressional intervention at that point made the required adverseness “beyond doubt,” id., at 939), and quite incor-
rect.  When a private party has a judicial decree safely in hand to prevent his injury, additional judicial action re- quires that a party injured by the decree seek to undo it.
In Chadha, the intervening House and Senate fulfilled that requirement. Here no one does.
The majority’s discussion of the requirements of Article
III bears no resemblance to our jurisprudence.  It accuses the amicus (appointed to argue against our jurisdiction) of
“elid[ing]  the  distinction  between  . . .  the  jurisdictional
requirements of Article III and the prudential limits on its exercise.”  Ante, at 6.  It then proceeds to call the require-
ment of adverseness a “prudential” aspect of standing.  Of
standing.  That is incomprehensible. A plaintiff (or appel- lant) can have all the standing in the world—satisfying all three standing requirements of Lujan that the majority so carefully quotes, ante, at 7—and yet no Article III contro- versy may be before the court.  Article III requires not just a plaintiff (or appellant) who has standing to complain but an opposing party who denies the validity of the com- plaint.  It is not the amicus that has done the eliding of distinctions, but the majority, calling the quite separate Article III requirement of adverseness between the parties an element (which it then pronounces a “prudential” ele- ment) of standing.  The question here is not whether, as the majority puts it, “the United States retains a stake
 

 


8                               UNITED STATES v. WINDSOR

SCALIA, J., dissenting

sufficient to support Article III jurisdiction,” ibid. the question is whether there is any controversy (which re- quires contradiction) between the United States and Ms. Windsor. There is not.
I find it wryly amusing that the majority seeks to dis- miss  the  requirement  of  party-adverseness  as  nothing
more than a  “prudential” aspect of  the sole Article III requirement of standing.  (Relegating a jurisdictional re- quirement to  “prudential” status is  a  wondrous device,
enabling courts to ignore the requirement whenever they believe it “prudent”—which is to say, a good idea.)  Half a
century ago, a Court similarly bent upon announcing its view regarding the constitutionality of a federal statute achieved that goal by effecting a remarkably similar but
completely opposite distortion of the principles limiting our jurisdiction.    The  Court’s  notorious opinion  in  Flast  v.
Cohen, 392 U. S. 83, 98–101 (1968), held that standing
was  merely  an  element  (which  it  pronounced  to  be  a
“prudential” element) of the sole Article III requirement of adverseness.  We have been living with the chaos created by that power-grabbing decision ever since, see Hein v. Freedom From Religion Foundation, Inc., 551 U. S. 587 (2007), as we will have to live with the chaos created by this one.
The  authorities the  majority cites  fall  miles short of supporting the counterintuitive notion that an Article III
“controversy” can exist without disagreement between the
parties.   In Deposit Guaranty Nat. Bank v. Roper, 445
U. S. 326 (1980), the District Court had entered judgment in the individual plaintiff ’s favor based on the defendant
bank’s offer to pay the full amount claimed.  The plaintiff, however, sought to appeal the District Court’s denial of
class certification under Federal Rule of Civil Procedure
23.   There was a continuing dispute between the parties concerning the issue raised on appeal.  The same is true of
the other case cited by the majority, Camreta v. Greene,


 


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SCALIA, J., dissenting

563 U. S.       (2011).  There the District Court found that the defendant state officers had violated the Fourth Amendment, but rendered judgment in their favor because they were entitled to official immunity, application of the Fourth Amendment to their conduct not having been clear at the time of violation.   The officers sought to appeal the holding of Fourth Amendment violation, which would circumscribe their future conduct; the plaintiff continued to insist that a Fourth Amendment violation had occurred. The “prudential” discretion to which both those cases refer was the discretion to deny an appeal even when a live controversy exists—not the discretion to grant one when it does not.   The majority can cite no case in which this Court entertained an appeal in which both parties urged us to affirm the judgment below.  And that is because the existence of a controversy is not a “prudential” require- ment that we have invented, but an essential element of an Article III case or controversy.  The majority’s notion that a case between friendly parties can be entertained so long as “adversarial presentation of the issues is assured by the participation of amici curiae prepared to defend with vigor” the other side of the issue, ante, at 10, effects a breathtaking revolution in our Article III jurisprudence.
It may be argued that if what we say is true some Presi- dential determinations that statutes are unconstitutional will not be subject to our review.   That is as it should be, when both the President and the plaintiff agree that the statute is unconstitutional.  Where the Executive is en- forcing an unconstitutional law, suit will of course lie; but if, in that suit, the Executive admits the unconstitution- ality of the law, the litigation should end in an order or a consent decree enjoining enforcement.  This suit saw the light of day only because the President enforced the Act (and thus gave Windsor standing to sue) even though he believed it unconstitutional. He could have equally chosen (more appropriately, some would say) neither to enforce


 


10                             UNITED STATES v. WINDSOR

SCALIA, J., dissenting

nor to defend the statute he believed to be unconstitu- tional, see Presidential Authority to Decline to Execute Un- constitutional Statutes,  18  Op.  Off.  Legal  Counsel  199 (Nov. 2, 1994)—in which event Windsor would not have been injured, the District Court could not have refereed this friendly scrimmage, and the Executive’s determina- tion of unconstitutionality would have escaped this Court’s desire to blurt out its view of the law.  The matter would have been left, as so many matters ought to be left, to a tug of war between the President and the Congress, which has innumerable means (up to  and including impeach- ment) of compelling the President to enforce the laws it has written.  Or the President could have evaded presen- tation of the constitutional issue to this Court simply by declining to appeal the District Court and Court of Ap- peals dispositions he agreed with.  Be sure of this much: If a President wants to insulate his judgment of unconstitu- tionality from our review, he can.  What the views urged in this dissent produce is not insulation from judicial review but insulation from Executive contrivance.
The  majority  brandishes  the  famous  sentence  from
Marbury v. Madison, 1 Cranch 137, 177 (1803) that “[i]t is emphatically the province and duty of the judicial depart-
ment to say what the law is.”  Ante, at 12 (internal quota-
tion marks omitted).  But that sentence neither says nor implies that it  is  always the province and duty of  the Court to say what the law is—much less that its responsi- bility in that regard is a “primary” one.   The very next sentence of Chief Justice Marshall’s opinion makes the crucial qualification that today’s majority ignores: “Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”  1 Cranch, at 177 (em- phasis added).   Only when a “particular case” is before us—that is, a controversy that it is our business to resolve under Article III—do we have the province and duty to pronounce the law.  For the views of our early Court more
 

 


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SCALIA, J., dissenting

precisely addressing the question before us here, the ma- jority ought instead to have consulted the opinion of Chief Justice Taney in Lord v. Veazie, 8 How. 251 (1850):
“The objection in the case before us is . . . that the plaintiff and defendant have the same interest, and that interest adverse and in conflict with the interest of third persons, whose rights would be seriously af- fected if the question of law was decided in the man- ner that both of the parties to this suit desire it to be.

“A judgment entered under such circumstances, and for such purposes, is a mere form.  The whole proceed- ing was in contempt of the court, and highly repre- hensible . . . . A judgment in form, thus procured, in the eye of the law is no judgment of the court.  It is a nullity, and no writ of error will lie upon it.  This writ is, therefore, dismissed.” Id., at 255–256.

There is, in the words of Marbury, no “necessity [to] ex- pound and interpret” the law in this case; just a desire to  place  this  Court  at  the  center  of  the  Nation’s  life.
1 Cranch, at 177.

B
A few words in response to the theory of jurisdiction set forth in JUSTICE ALITO’s dissent:  Though less far reach- ing in its consequences than the majority’s conversion of constitutionally required adverseness into a discretionary element of standing, the theory of that dissent similarly elevates the Court to the “primary” determiner of constitu- tional questions involving the separation of powers, and, to boot, increases the power of the most dangerous branch: the “legislative department,” which by its nature “draw[s] all power into its impetuous vortex.”  The Federalist, No.
48, at 309 (J. Madison).   Heretofore in our national his- tory, the President’s failure to “take Care that the Laws
be faithfully executed,” U. S. Const., Art. II, §3, could only be
 

 


12                             UNITED STATES v. WINDSOR

SCALIA, J., dissenting

brought before a judicial tribunal by someone whose concrete interests were harmed by that alleged failure. JUSTICE ALITO would create a system in which Congress can hale the Executive before the courts not only to vindi- cate its own institutional powers to act, but to correct a perceived inadequacy in the execution of its laws.3    This would lay to rest Tocqueville’s praise of our judicial system as one which “intimately bind[s] the case made for the law with the case made for one man,” one in which legislation is “no longer exposed to the daily aggression of the par- ties,” and in which “[t]he political question that [the judge] must resolve is linked to the interest” of private litigants. A. de Tocqueville, Democracy in America 97 (H. Mansfield


——————
3 JUSTICE ALITO attempts to limit his argument by claiming that Con- gress is injured (and can therefore appeal) when its statute is held unconstitutional without Presidential defense, but is not injured when its statute is held unconstitutional despite Presidential defense.   I do not understand that line.  The injury to Congress is the same whether the President has defended the statute or not.   And if the injury is threatened, why should Congress not be able to participate in the suit from the beginning, just as the President can?  And if having a statute declared unconstitutional (and therefore inoperative) by a court is an injury, why is it not an injury when a statute is declared unconstitu- tional by the President and rendered inoperative by his consequent failure to enforce it?  Or when the President simply declines to enforce it without opining on its constitutionality?  If it is the inoperativeness that constitutes the injury—the “impairment of [the legislative] func- tion,” as JUSTICE ALITO puts it, post, at 4—it should make no difference which of the other two branches inflicts it, and whether the Constitu- tion is the pretext.   A principled and predictable system of jurispru- dence cannot rest upon a shifting concept of injury, designed to support standing when we would like it.   If this Court agreed with JUSTICE ALITO’s distinction, its opinion in Raines v. Byrd, 521 U. S. 811 (1997), which involved an original suit by Members of Congress  challenging an assertedly unconstitutional law, would have been written quite differ- ently; and JUSTICE ALITO’s distinguishing of that case on grounds quite irrelevant to his theory of standing would have been unnecessary.


 


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SCALIA, J., dissenting

& D. Winthrop eds. 2000).  That would be replaced by a system in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President refuses to implement a statute he believes to be unconstitutional, and whenever he imple- ments a law in a manner that is not to Congress’s liking.
JUSTICE ALITO’s notion of standing will likewise enor- mously shrink the area to which “judicial censure, exer- cised by the courts on legislation, cannot extend,” ibid. For example, a bare majority of both Houses could bring into court the assertion that the Executive’s implementa- tion of welfare programs is too generous—a failure that no other litigant would have standing to complain about. Moreover, as we indicated in Raines v. Byrd, 521 U. S.
811, 828 (1997), if Congress can sue the Executive for the erroneous application of the law that “injures” its power to legislate, surely the Executive can sue Congress for its erroneous adoption of an unconstitutional law that “in- jures” the Executive’s power to administer—or perhaps for its protracted failure to act on one of his nominations. The opportunities for dragging the courts into disputes hith- erto left for political resolution are endless.
JUSTICE ALITO’s dissent is correct that Raines did not formally decide this issue, but its reasoning does.   The
opinion spends three pages discussing famous, decades- long  disputes  between  the  President  and  Congress—
regarding congressional power to forbid the Presidential removal  of  executive  officers,  regarding  the  legislative veto,  regarding  congressional  appointment  of  executive
officers,   and   regarding  the   pocket   veto—that  would surely have been promptly resolved by a Congress-vs.-the-
President lawsuit if the impairment of a branch’s powers alone conferred standing to commence litigation.   But it does not, and never has; the “enormous power that the
judiciary  would  acquire”  from  the  ability  to  adjudicate such suits “would have made a mockery of [Hamilton’s]


 


14                             UNITED STATES v. WINDSOR

SCALIA, J., dissenting

quotation of Montesquieu to the effect that ‘of the three powers above mentioned . . . the JUDICIARY is next to nothing.’ ” Barnes v. Kline, 759 F. 2d 21, 58 (CADC 1985) (Bork, J., dissenting) (quoting The Federalist No. 78 (A. Hamilton)).
To be sure, if Congress cannot invoke our authority in the way that JUSTICE  ALITO  proposes, then its only re-
course is to confront the President directly.  Unimaginable
evil this is not.  Our system is designed for confrontation. That  is  what  “[a]mbition . . .  counteract[ing] ambition,”
The Federalist, No. 51, at 322 (J. Madison), is all about. If
majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to com- pel  executive  action  without  a  lawsuit—from  refusing to confirm Presidential appointees to the elimination of funding.  (Nothing says “enforce the Act” quite like “. . . or you will have money for little else.”)  But the condition is crucial;  Congress must  care  enough  to  act  against  the President itself, not merely enough to instruct its lawyers to ask us to do so.   Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor.  And by the way, if the President loses the lawsuit but does not faith- fully  implement the  Court’s decree, just  as  he  did  not faithfully implement Congress’s statute, what then?  Only Congress can bring him to heel by . . . what do you think? Yes: a direct confrontation with the President.

II
For the reasons above, I think that this Court has, and the Court of Appeals had, no power to decide this suit.  We should vacate the decision below and remand to the Court of  Appeals for  the  Second Circuit, with instructions to dismiss the appeal.   Given that the majority has volun- teered its view of the merits, however, I proceed to discuss that as well.


 


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A
There are many remarkable things about the majority’s merits holding.  The first is how rootless and shifting its justifications are.   For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations—initially fooling many readers, I am sure, into thinking that this is a federalism opinion. But we are eventually told that “it is unnecessary to de- cide whether this federal intrusion on state power is a vio- lation of the Constitution,” and that “[t]he State’s power in  defining the  marital relation is  of  central relevance in this case quite apart from principles of federalism” be- cause “the State’s decision to give this class of persons the right to  marry conferred upon them a  dignity and status of immense import.”  Ante, at 18.  But no one ques- tions the power of the States to define marriage (with the concomitant conferral of dignity and status), so what is the point of devoting seven pages to describing how long and well established that power is?  Even after the opinion has formally disclaimed reliance upon principles of federalism, mentions of “the usual tradition of recognizing and accept- ing state definitions of marriage” continue.  See, e.g., ante, at 20.  What to make of this?  The opinion never explains. My guess is that the majority, while reluctant to suggest that defining the meaning of “marriage” in federal stat- utes is unsupported by any of the Federal Government’s enumerated powers,4  nonetheless needs some rhetorical basis to support its pretense that today’s prohibition of


——————
4 Such a suggestion would be impossible, given the Federal Govern- ment’s long history of making pronouncements regarding marriage—for example, conditioning Utah’s entry into the Union upon its prohibition of polygamy.  See Act of July 16, 1894, ch. 138, §3, 28 Stat. 108 (“The constitution [of Utah]” must provide “perfect toleration of religious sentiment,”  “Provided,  That  polygamous  or  plural  marriages  are forever prohibited”).


 


16                             UNITED STATES v. WINDSOR

SCALIA, J., dissenting

laws excluding same-sex marriage is confined to the Fed- eral Government (leaving the second, state-law shoe to be dropped later, maybe next Term). But I am only guessing.
Equally perplexing are the opinion’s references to “the
Constitution’s guarantee of equality.”  Ibid.  Near the end of the opinion, we are told that although the “equal protec- tion guarantee of the Fourteenth Amendment makes [the] Fifth Amendment [due process] right all the more specific and all the better understood and preserved”—what can that mean?—“the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does.”  Ante, at 25.  The only possible interpreta- tion of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today’s holding. But the portion of the majority opinion that explains why DOMA is unconstitutional (Part IV) begins by citing Bol- ling v. Sharpe, 347 U. S. 497 (1954), Department of Agri- culture v.  Moreno, 413 U. S.  528 (1973), and  Romer v. Evans,  517  U. S.  620  (1996)—all  of  which  are  equal- protection cases.5      And  those  three  cases  are  the  only authorities that the Court cites in Part IV about the Con- stitution’s meaning, except for its citation of Lawrence v. Texas, 539 U. S. 558 (2003) (not an equal-protection case) to support its passing assertion that the Constitution protects the “moral and sexual choices” of same-sex cou- ples, ante, at 23.
Moreover, if  this  is  meant  to  be  an  equal-protection opinion, it is a confusing one.  The opinion does not resolve and  indeed does not  even mention what had  been the

——————
5 Since the Equal Protection Clause technically applies only against the States, see U. S. Const., Amdt. 14, Bolling and Moreno, dealing with federal action, relied upon “the equal protection component of the Due Process Clause of the Fifth Amendment,” Moreno, 413 U. S., at
533.


 


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SCALIA, J., dissenting

central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere ra- tionality.  That is the issue that divided the parties and the court below, compare Brief for Respondent Bipartisan Legal Advisory Group of U. S. House of Representatives (merits) 24–28 (no), with Brief for Respondent Windsor (merits) 17–31 and Brief for United States (merits) 18–36 (yes); and compare 699 F. 3d 169, 180–185 (CA2 2012) (yes), with id., at 208–211 (Straub, J., dissenting in part and concurring in part) (no).  In accord with my previously expressed skepticism about the Court’s “tiers of scrutiny” approach, I would review this classification only for its rationality.  See United States v. Virginia, 518 U. S. 515,
567–570 (1996) (SCALIA, J., dissenting). As nearly as I can tell, the Court agrees with that; its opinion does not apply strict scrutiny, and its central propositions are taken from rational-basis cases like Moreno.  But the Court certainly does not apply anything that resembles that deferential framework.  See Heller v. Doe, 509 U. S. 312, 320 (1993) (a classification “ ‘must be upheld . . . if there is any reason- ably conceivable state of facts’ ” that could justify it).
The majority opinion need not get into the strict-vs.- rational-basis scrutiny question, and need not justify its
holding under either, because it says that DOMA is un-
constitutional as “a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,”
ante, at 25; that it violates “basic due process” principles,
ante, at 20; and that it inflicts an “injury and indignity” of a kind that denies “an essential part of the liberty pro- tected by the Fifth Amendment,” ante, at 19.  The majority never utters the dread words “substantive due process,” perhaps sensing the disrepute into which that doctrine has fallen, but that is what those statements mean.  Yet the opinion does not argue that same-sex marriage is “deeply  rooted  in  this  Nation’s  history  and  tradition,”


 


18                             UNITED STATES v. WINDSOR

SCALIA, J., dissenting

Washington   v.   Glucksberg,   521   U. S.   702,   720–721 (1997), a claim that would of course be quite absurd.  So would the further suggestion (also necessary, under our substantive-due-process precedents) that a world in which DOMA exists is one bereft of “ ‘ordered liberty.’ ”  Id., at 721 (quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937)).
Some might conclude that this loaf could have used a while longer in the oven.  But that would be wrong; it is already overcooked.  The most expert care in preparation cannot redeem a bad recipe.   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 fed- eralism component playing a role) because it is motivated by a “ ‘bare . . . desire to harm’ ” couples in same-sex mar- riages.  Ante, at 20.  It is this proposition with which I will therefore engage.

B
As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms.  See Lawrence v. Texas, 539 U. S. 558, 599 (2003) (SCALIA, J., dissenting).  I will not swell the U. S. Reports with restatements of that point.  It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it nei- ther requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.
However,  even  setting  aside  traditional moral  disap- proval  of  same-sex  marriage  (or  indeed  same-sex  sex),
there are  many perfectly valid—indeed, downright bor-
ing—justifying rationales for this legislation.  Their exist- ence ought to be the end of this case.  For they give the lie
to  the  Court’s  conclusion  that  only  those  with  hateful
hearts could have  voted “aye” on  this  Act.    And  more importantly, they serve to make the contents of the legis-


 


Cite as:  570 U. S.        (2013)                               19

SCALIA, J., dissenting

lators’ hearts quite irrelevant: “It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.”   United States v. O’Brien, 391
U. S. 367, 383 (1968).  Or at least it was a familiar princi- ple.  By holding to the contrary, the majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.
The majority concludes that the only motive for this Act was the “bare . . . desire to harm a politically unpopular group.”   Ante, at 20.   Bear in  mind that the object of this  condemnation is  not  the  legislature of  some  once- Confederate Southern state (familiar objects of the Court’s scorn,  see,  e.g.,  Edwards  v.  Aguillard,  482  U. S.  578 (1987)), but our respected coordinate branches, the Con- gress and Presidency of the United States.  Laying such a charge against them should require the most extraordi- nary evidence, and I would have thought that every attempt would be made to indulge a more anodyne expla- nation for the statute.  The majority does the opposite— affirmatively concealing from the reader the arguments that exist in justification.  It makes only a passing men- tion of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them. See ante, at 21.  I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.
To  choose  just  one  of  these  defenders’  arguments, DOMA avoids difficult choice-of-law issues that will now
arise absent a uniform federal definition of marriage. See,
e.g., Baude, Beyond DOMA: Choice of State Law in Fed- eral Statutes, 64 Stan. L. Rev. 1371 (2012).  Imagine a pair
of women who marry in Albany and then move to Ala-
bama, which does not “recognize as valid any marriage of


 


20                             UNITED STATES v. WINDSOR

SCALIA, J., dissenting

parties of the same sex.”   Ala. Code §30–1–19(e) (2011). When the couple files their next federal tax return, may it be a joint one?  Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage)  or  their  State  of  domicile  (which  does  not)? (Does the answer depend on whether they were just visit- ing in Albany?)  Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules? If so, which State’s? And what about States where the status of an out-of-state same-sex marriage is an unsettled question under local law?   See Godfrey  v.  Spano,  13  N. Y.  3d  358,  920  N.  E.  2d  328 (2009).   DOMA avoided all of this uncertainty by speci- fying  which  marriages would  be  recognized for  federal purposes.   That is a classic purpose for a definitional provision.
Further, DOMA preserves the intended effects of prior legislation against then-unforeseen changes in circum- stance.    When  Congress provided (for  example) that  a special estate-tax exemption would exist for spouses, this exemption reached only opposite-sex spouses—those being the only sort that were recognized in any State at the time of DOMA’s passage. When it became clear that changes in state law might one day alter that balance, DOMA’s defi- nitional section was enacted to ensure that state-level experimentation did not automatically alter the basic operation of federal law, unless and until Congress made the further judgment to do so on its own.   That is not animus—just stabilizing prudence.   Congress has hardly demonstrated itself unwilling to make such further, revis- ing judgments upon due deliberation.  See, e.g., Don’t Ask, Don’t Tell Repeal Act of 2010, 124 Stat. 3515.
The Court mentions none of this.  Instead, it accuses the
Congress that enacted this law and the President who signed  it  of  something much  worse  than,  for  example, having acted in excess of enumerated federal powers—or
 

 


Cite as:  570 U. S.        (2013)                               21

SCALIA, J., dissenting

even having drawn distinctions that prove to be irrational. Those  legal  errors  may  be  made  in  good  faith,  errors though they are.  But the majority says that the support- ers of this Act acted with malice—with the “purpose” (ante, at 25) “to disparage and to injure” same-sex couples.   It says  that  the  motivation  for  DOMA  was  to  “demean,” ibid.; to “impose inequality,” ante, at 22; to “impose . . . a stigma,” ante, at 21; to deny people “equal dignity,” ibid.; to brand gay people as “unworthy,” ante, at 23; and to “humiliat[e]” their children, ibid. (emphasis added).
I am sure these accusations are quite untrue.   To be sure (as the majority points out), the legislation is called the Defense of Marriage Act.   But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to con- demn, demean, or humiliate other constitutions.  To hurl such accusations so casually demeans this institution.  In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “dis- parage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homo- sexual.   All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in  our  society for  most of  its  existence— indeed, had been unquestioned in virtually all societies for virtually all of human history.  It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

*       *       *
The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are


 


22                             UNITED STATES v. WINDSOR

SCALIA, J., dissenting

confined” to those couples “joined in same-sex marriages made lawful by the State.”  Ante, at 26, 25.  I have heard such “bald, unreasoned disclaimer[s]” before.   Lawrence,
539 U. S., at 604.   When the Court declared a constitu- tional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any rela- tionship that homosexual persons seek to enter.”   Id., at
578.   Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” ante, at 23—with an accompanying citation of Lawrence. It takes real cheek for today’s major- ity to assure us, as it is going out the door, that a constitu- tional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it.   I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.
I do not mean to suggest disagreement with THE CHIEF
JUSTICE’s  view,  ante,  p. 2–4  (dissenting  opinion),  that lower federal courts and state courts can distinguish today’s case when the issue before them is state denial of marital status to same-sex couples—or even that this Court could theoretically do so.  Lord, an opinion with such scatter-shot  rationales  as  this  one  (federalism  noises among them) can be distinguished in many ways.   And deserves to be.  State and lower federal courts should take the Court at its word and distinguish away.
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion.  As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “ ‘bare . . . desire to harm’ ”


 


Cite as:  570 U. S.        (2013)                               23

SCALIA, J., dissenting

couples in same-sex marriages. Supra, at 18.  How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples mari- tal status. Consider how easy (inevitable) it is to make the following substitutions in a passage from today’s opinion ante, at 22:
“DOMA’s This state law’s principal effect is to identify a subset of state-sanctioned marriages constitution- ally protected sexual relationships, see Lawrence, and make them unequal.  The principal purpose is to im- pose inequality, not for other reasons like govern- mental efficiency.  Responsibilities, as well as rights, enhance the dignity and integrity of the person.  And DOMA this state law contrives to deprive some cou- ples married under the laws of their State enjoying constitutionally protected sexual relationships, but not other couples, of both rights and responsibilities.”

Or try this passage, from ante, at 22–23:
“[DOMA] This state law tells those couples, and all the world, that their otherwise valid marriages rela- tionships are unworthy of  federal  state recognition. This places same-sex couples in an unstable position of being in a second-tier marriage relationship.  The differentiation  demeans  the  couple,  whose  moral and sexual choices the Constitution protects, see Lawrence, . . . .”

Or this, from ante, at 23—which does not even require alteration, except as to the invented number:
“And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to under- stand the integrity and closeness of their own family and its concord with other families in their commu- nity and in their daily lives.”


 


24                             UNITED STATES v. WINDSOR

SCALIA, J., dissenting

Similarly transposable passages—deliberately transpos- able, I think—abound.  In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that “personhood and dig- nity” in the first place.  Ante, at 26.  As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.
By  formally  declaring  anyone  opposed  to  same-sex marriage an enemy of human decency, the majority arms
well every challenger to a state law restricting marriage to
its  traditional definition.   Henceforth those challengers will lead with this Court’s declaration that there is “no
legitimate purpose” served by such a law, and will claim
that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples, see ante, at 25, 26.   The majority’s limiting assurance will be meaningless in the face of lan- guage like that, as the majority well knows.  That is why the language is there.  The result will be a judicial distor- tion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member of this institution.
As to that debate: Few public controversies touch an institution so central to the lives of so many, and few
inspire such attendant passion by good people on all sides.
Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court
pawns today to buy its stolen moment in the spotlight: a
system of government that permits us to rule ourselves. Since DOMA’s passage, citizens on all sides of the question have seen victories and they have seen defeats.   There have  been  plebiscites, legislation, persuasion, and  loud voices—in other words, democracy.  Victories in one place
 

 


Cite as:  570 U. S.        (2013)                               25

SCALIA, J., dissenting

for some, see North Carolina Const., Amdt. 1 (providing that “[m]arriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State”) (approved by a popular vote, 61% to 39% on May 8, 2012),6 are offset by victories in other places for others, see Maryland Question 6 (establishing “that Mary- land’s civil marriage laws allow gay and lesbian couples to obtain a civil marriage license”) (approved by a popular vote, 52% to 48%, on November 6, 2012).7    Even in a sin- gle State, the question has come out differently on differ- ent occasions.  Compare Maine Question 1 (permitting “the State of Maine to issue marriage licenses to same-sex couples”) (approved by a popular vote, 53% to 47%, on November 6, 2012)8 with Maine Question 1 (rejecting “the new law that lets same-sex couples marry”) (approved by a popular vote, 53% to 47%, on November 3, 2009).9
In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us.  The truth is more complicated.  It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle.  Too bad.  A reminder that dis- agreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial tem- perament.  We might have covered ourselves with honor today, by promising all sides of this debate that it was


——————
6 North Carolina State Board of Elections, Official Results: Primary
Election of May 8, 2012, Constitutional Amendment.
7 Maryland State Board of Elections, Official 2012 Presidential Gen- eral Election Results for All State Questions, Question 06.
8 Maine Bureau of Elections, Nov. 3, 2009, Referendum Tabulation
(Question 1).
9 Maine  Bureau  of  Elections,  Nov.  6,  2012,  Referendum  Election
Tabulations (Question 1).


 


26                             UNITED STATES v. WINDSOR

SCALIA, J., dissenting

theirs to settle and that we would respect their resolution. We might have let the People decide.
But that the majority will not do.  Some will rejoice in today’s decision, and some will despair at it; that is the
nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners
of  an  honest  victory,  and  the  losers  of  the  peace  that comes from a fair defeat.   We owed both of them better. I dissent.


 

Gary Watkins

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