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June 26, 2013
Scalia's DOMA DissentMy simple rule of the thumb....if you find yoursefl on the opposing side of Scalia, rethink your position. I wonder how many "conservatives" celebrating this decision were cheering on John Roberts yesterday in the Voting Rights Act case. Funny how quickly people can go from that to the Ginsburg school of "things I don't like are un-constitutional" school of jurisprudence. I'm not going to get into the standing issue which is technical, though Scalia rips the majority apart there too. Here's some of what he said about the majority's decision on the merits (pdf). (Emphasis mine) 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 decide whether this federal intrusion on state power is a violation 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 questions 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? 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 neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol. Scalia notes there are damn good reasons to have a federal definition of marriage and they are exactly the kind of things legislators, not judges, need to consider. Imagine a pair of women who marry in Albany and then move to Alabama, 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 visiting 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 specifying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision. On second thought, read the whole thing. | Recent Comments
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