OK, I’ve digested the dissents in the DOMA case, especially Justice Scalia’s enraged one. (He gets points for the phrase “legal argle-bargle.” I plan to borrow that for future articles.) It’s important to point out that he directs most of his rage at the five-justice majority, not at proponents of gay marriage, or the institution itself. He’s surprisingly OK with ballot initiatives and laws that have approved gay marriage. Scalia doesn’t share the morals of gay marriage supporters, but he is willing to live and let live. This is quite lovely:
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 for some … are offset by victories in other places for others.
Then Scalia goes on to accuse the court of taking away from We the People the chance to continue this debate over marriage. But to do that, he has to skip ahead to a future ruling in which the court declares state bans on gay marriage unconstitutional throughout the land. Scalia says this is inevitable, and he shows why by crossing out “DOMA” and substituting “state law” in paragraphs from Kennedy that he reproduces. Look, I hope Scalia is right about how this will turn out. But it matters that the eventuality he predicts hasn’t happened yet. The justices didn’t strike down California’s marriage ban in the second case before them. They punted on it, thanks to a theory about lack of standing we owe to our own dear Walter—and which he actually previewed in 2010 in Slate. It matters that the court is moving cautiously, step by step. Scalia seeks to turn what is merely a drama into a melodrama. That’s his way, but it has more entertainment value than substance.
Scalia also rips into Kennedy for failing the constitutional law test. That’s because, as you said, Eric, Kennedy didn’t make entirely clear the basis for his holding. It’s about equal protection under the law, which is rooted in the court’s cases about the 14th Amendment, except Kennedy talked about the Fifth Amendment (which is where the right to not be deprived of liberty without due process comes from). Kennedy also didn’t make clear whether he was striking down DOMA because it failed the rational basis test—Congress had no good reason for it—or because it failed to pass the higher bar of heightened scrutiny. You know what? Good. I’ve been tired of these tests and tiers since law school. In fact, Scalia doesn’t like them either. I think what really matters is that Kennedy’s opinion passes the common-sense test. The government can’t single out a group of people for second-class treatment because it just finds their behavior yucky or unfamiliar, when what they’re doing turns out to be perfectly harmless (and even a social good).
Scalia wants to show that it’s possible to oppose gay marriage without hating gay people, accusing the court of turning all opponents into “enemies of the human race.” Eric, you asked a related question. And I do think that in this transitional moment, when a lot of people are still adjusting to what has been an amazingly rapid shift in opinion and social mores, the answer is yes, it is possible to do that. But I do think the roots of that opposition lie in some sense of basic antipathy and resistance to change. It’s like the debate over interracial marriage: For a long time, it seemed just fine to stand against white people marrying black people—and then it seemed racist and odious. The Supreme Court’s 1967 ruling striking down state bans on interracial marriage at once reflected and helped bring about that shift. Today’s ruling is less dramatic. But it will play a similar role in rapidly changing public opinion. That’s the real conservative objection to it, I think.
On to California. In a more unusual 5-to-4 split, the court dismissed the appeal of the district court ruling striking down California’s gay marriage ban. Chief Justice John Roberts wrote the majority opinion, and on his side are Scalia, Breyer, Ginsburg, and Kagan. That leaves Kennedy, Thomas, Alito, and Sotomayor in dissent. Weird, right? Except that this decision isn’t about gay marriage. It’s about the parameters of standing on appeal, and whether the supporters of the gay marriage ban, Proposition 8, were properly in court on appeal to defend the law, which the governor and attorney general of California refused to do. “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to,” Roberts writes. “We decline to do so for the first time here.”
Walter, in December 2010 in Slate, you wrote: “The Great California Gay Marriage Case of 2010 is over, and gay marriage won. In fact, it was over last summer when the state officials decided not to appeal.” Your argument then is the one the majority adopted today. You said that the supporters of Prop 8 had no "personal stake" in the outcome of this litigation. And so the appeals court and the Supreme Court had no business hearing their appeal. To a lot of people, this seems unfair. After all, the voters passed Prop 8 at the polls. If the governor and the attorney general decide not to appeal a ruling striking down a ballot initiative, “is that all it takes to thwart the will of the people?” Your answer: “Fair or unfair, however, a federal appellate court has no authority to hear an appeal when the real party/defendant doesn’t want to keep defending the lawsuit anymore. And that is the case we have here.”
I’ve never liked this argument and I’m not going to start liking it now. I do worry that it is anti-democratic to prevent anyone from representing the people who vote for ballot initiatives when the executive refuses to defend these laws. And I’m generally not a fan of making it harder for people to get to court by narrowing the concept of standing. It’s true that Roberts’ ruling (and your rationale) applies only to appeals, not at trial. That’s a relief. Still, appeals are a key part of the legal process, and now when some ballot initiatives lose in court at trial, the appeals will vanish. Poof. As Kennedy says for the dissenters (busy guy today), “The Court’s reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials—the same officials who would not defend the initiative, an injury the Court now leaves unremedied.” In this case, in contrast to DOMA, it’s Kennedy who is proclaiming about democracy—“The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around”—while Scalia is on the other side. And of course, neither of them seemed concerned about dealing a blow to democracy on Tuesday when they joined the majority that struck down the Voting Rights Act.
Oh well. In the larger legal landscape, this particular fight over standing is a pretty minor one, affecting a small number of cases. I’m most interested in what happens next in California. Gov. Jerry Brown says that gay marriage statewide is on the way. But with only a district court ruling in hand, will the state face future challenges, or is there just no one who can get into court to bring them? And to go back to DOMA, what does the Obama administration do next? The court’s ruling is limited to gay couples who live in states that recognize their marriages as legal. But won’t there be pressure on the administration to extend federal benefits to the couple who gets married legally in New York and then moves to New Jersey or Nebraska?