Supreme Court 2013: The Year in Review

Justice Alito’s Defense of DOMA Is Entirely Emotional
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June 27 2013 12:58 PM

Supreme Court 2013: The Year in Review

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Justice Alito’s defense of DOMA is entirely emotional.

Supreme Court Justice Samuel Alito sits in the audience at a National Italian American Foundation.
Supreme Court Justice Samuel Alito at a National Italian American Foundation event in Washington in 2006

Photo by Jonathan Ernst/Reuters

Windsor v. United States, decided Wednesday, invalidates a provision of the Defense of Marriage Act that denies federal marriage benefits to same-sex couples. Justice Anthony Kennedy’s majority opinion points out that although laws as to who may marry (blood relatives? children?) differ quite a bit from state to state, federal benefits are uniform across states. That is, if a marriage is valid under one state’s law, that’s enough for the couple to qualify for those benefits, regardless of any differences between that state’s law and another state’s law. But DOMA, enacted in 1996, denied federal benefits to married same-sex couples even if their marriage was lawful. With telling quotations from the legislative history, Kennedy shows that DOMA’s denial of federal benefits to lawful same-sex marriages—alone among marriages—was motivated by a hostility that appears to have no basis related to any public interest. DOMA imposes both financial and psychological harm on same-sex married couples. The imposition is gratuitous. It comes close to saying: We’re not giving you money only because we don’t like you even though you’re loyal, law-abiding, and productive citizens. That sounds like a denial of equal protection, which the Supreme Court has long considered an implicit part of the due process clause of the Fifth Amendment (the due process clause that constrains federal as distinct from state action).

There is an analogy to public school segregation in the South before Brown v. Board of Education declared it unconstitutional: The motivation for segregation was hostility toward a minority, and the hostility had no justification in public policy. It was more sinister than DOMA because it was part of an elaborate, indeed an all-encompassing, system of official racial discrimination in Southern states. Gay people are no longer subject to systematic governmental discrimination. The part of DOMA at issue in the Windsor case is thus an anomaly. But its anomalousness is also cogent evidence that it’s unjustified. Gay sex is no longer illegal; its prohibition has been ruled unconstitutional. On what ground therefore should gay marriage be disfavored by the federal government?

An even closer analogy to Windsor is Loving v. Virginia, the case in which the Supreme Court in 1967 invalidated state laws forbidding interracial marriage. In that era, interracial marriage aroused the same antipathies that same-sex marriage does now (also primarily in Southern states, where polls show that disapproval of same-sex marriage is much higher than elsewhere). In neither case was there a reason, other than distaste, for forbidding the practice. DOMA does not forbid gay marriage. But it demotes it.

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This discrimination against a historically despised, discriminated-against, and indeed often persecuted group requires justification. Justice Antonin Scalia, in his dissent, suggests that the justification is simplification of federal law. The federal agencies that dispense marital benefits will have to decide which same-sex marriages are valid. But this is true with respect to heterosexual marriages as well. Only couples whose marriage is valid are entitled to marital benefits. Marriage validity is rarely contested, but when it is, the contest is resolved at the state level: If a state allows a 13-year-old to marry her pet frog, and frog and girl move to another state, the state to which they move may decide not to recognize the marriage on the ground that it’s contrary to the public policy of the state. And then the couple will not be entitled to marital benefits. And likewise with a same-sex marriage. Down the road, courts may have to decide whether a state that refuses to permit its residents to marry someone of the same sex is obliged to recognize such a marriage contracted in another state that does permit same-sex marriage. However that issue is resolved, though, it won’t augment the burden on federal authorities of determining the validity of a marriage.

I should think a textualist-originalist such as Scalia would want to point out that there is no general prohibition of discrimination by the federal government anywhere in the Constitution or its amendments and no reference to sex or marriage, as well as that the Framers of the Constitution and its amendments would have considered a proposal to provide constitutional protection for gay sex acts, let alone for gay marriage or gay marriage benefits, preposterous. (Justice Samuel Alito, in a separate dissent, remarked the absence of any reference to marriage in the Constitution as support for DOMA’s constitutionality.) But Scalia’s silence is a comment on the limits of textualism and originalism. Once the Supreme Court, a decade ago in Lawrence v. Texas, provided constitutional protection for gay sex, same-sex marriage became (or should have been recognized as) a conservative policy, since conservatives like to channel sex into marriage. And with 13 states and the District of Columbia now authorizing gay marriage (eight of them within the past eight months), and more likely to follow as public opinion swings decisively in favor of allowing such marriage, the withholding of federal marital benefits becomes a senseless rearguard action, like Southern states’ resistance in the 1960s to allowing interracial marriage. (The numbers: 53 percent of the adult population now favors the legalization of gay marriage, up from 27 percent in 1996, and the percentage rises to 70 percent for people between the ages of 18 and 29.) Scalia stated in his dissent that “to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements.” But the “defense” in the Defense of Marriage Act is actually an offense: a denial of federal benefits to “those who would prefer other arrangements.”

Alito took a different tack. He said that some people think that gay marriage undermines heterosexual marriage. He doesn’t say how, and I don’t understand how. If it’s true, does this mean that heterosexual marriage undermines same-sex marriage? Does Alito think that straight people will become gay as a result of the invalidation of DOMA? Or does he hanker for the time when gay or lesbian people married “straights” in order to conceal their true sexual identity? Alito is drawn to such arguments for DOMA as “the institution of marriage was created for the purpose of channeling heterosexual intercourse into a structure that supports child rearing,” and “marriage is essen­tially the solemnizing of a comprehensive, exclusive, per­manent union that is intrinsically ordered to producing new life, even if it does not always do so.” The first argument would have force only if one supposed (as virtually no one does any longer) that banning same-sex marriage would channel gays into straight marriages. The bearing of the second argument (a close paraphrase of official Vatican sex doctrine) eludes me. A sperm bank is intrinsically ordered to producing new life, even if it does not always do so. So what? A marriage of a man to a woman known to be sterile could not be thought intrinsically ordered to producing new life, yet it would surely be recognized by Alito as a valid marriage entitled to federal marital benefits. So far as yet appears, opposition to same-sex marriage, and to federal benefits for gay couples, is emotional and sectarian, rather than rational.

Richard A. Posner is a judge, U.S. Court of Appeals for the 7th Circuit, and a senior lecturer at the University of Chicago Law School.

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