Which justices overturn doma

After the resignation of Lewis F. Powell, Jr. He would have been an ideological twin to Antonin Scalia, who had been confirmed with ease the previous year. But the Democrats in the Senate, especially the new chairman of the Judiciary Committee, Joseph Biden, picked a fight over Bork and defeated his nomination by fifty-eight to forty-two. In response, Howard Baker, the former senator turned White House chief of staff, urged Reagan to acknowledge the new political realities and make a more moderate choice.

Reagan did; he selected Anthony M. In , in Romer v. Texas, they ruled that gay people could not be criminally prosecuted for having consensual sex; and last week, in United States v. Anthony Kennedy wrote all three opinions. DOMA denied all the federal benefits of marriage to same-sex couples who were wed under state law. He can be windy and verbose at times, but the Windsor opinion is bracingly plainspoken.

The Windsor case reached this happy conclusion because of the courage of the gay citizens who decided to stand up and fight, especially Edith Windsor, the widow who had been denied the federal tax benefits that surviving spouses are entitled to; because of the skillful advocacy of their lawyers, notably Roberta Kaplan, the private counsel who argued for Windsor, and Donald B.

Verrilli, Jr. Rather, as the title of the statute makes clear, DOMA was enacted to defend against the marriages of gay people. This discriminatory purpose was rooted in moral disapproval as Justice Kagan pointed out. Congress did not stay out of it. Section 3 of DOMA is not staying out of it. Section 3 of DOMA is stopping the recognition by the Federal Government of couples who are already married, solely based on their sexual orientation, and what it's doing is undermining, as you can see in the briefs of the States of New York and others, it's undermining the policy decisions made by those States that have permitted gay couples to marry.

States that have already resolved the cultural, the political, the moral -- whatever other controversies, they're resolved in those States. And by fencing those couples off, couples who are already married, and treating them as unmarried for purposes of Federal law, you're not -- you're not taking it one step at a time, you're not promoting caution, you're putting a stop button on it, and you're having discrimination for the first time in our country's history against a class of married couples.

I think when you have couples who are gay who are already married, you have to distinguish between those classes. Again, the Federal Government doesn't give marriage licenses, States do, and whatever the issues would be in those States would be what interest the States have, as opposed to here, what interest -- and we think there is none -- the Federal Government has.

There is little doubt that the answer to the question of why Congress singled out gay people's marriages for disrespect through DOMA.

The answer can't be uniformity as we've discussed. It can't be cost savings, because you still have to explain then why the cost savings is being wrought at the expense of married couples who are gay; and it can't be any of the State interests that weren't discussed, but questions of family law in parenting and marriage are done by the States, not by the Federal Government.

The only -- the only conclusion that can be drawn is what was in the House Report, which is moral disapproval of gay people, which the Congress thought was permissible in because it relied on the Court's Bowers decision, which this Court has said was wrong, not only at the time it was overruled in Lawrence, but was wrong when it was decided.

I think it was based on an understanding that gay -- an incorrect understanding that gay couples were fundamentally different than straight couples, an understanding that I don't think exists today and that's the sense I'm using that times can blind. I think there was -- we all can understand that people have moved on this, and now understand that there is no such distinction.

I don't have that number, Justice Ginsburg; I apologize. Chief Justice, I think the sea change has to do, just as discussed was Bowers and Lawrence, was an understanding that there is no difference -- there was fundamental difference that could justify this kind of categorical discrimination between gay couples and straight couples.

Chief Justice, is that no other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have. And only two of those referenda have ever lost. One was in Arizona; it then passed a couple years later. One was in Minnesota where they already have a statute on the books that prohibits marriages between gay people.

So I don't think -- and until gay people were not allowed to enter this country. So I don't think that the political power of gay people today could possibly be seen within that framework, and certainly is analogous -- I think gay people are far weaker than the women were at the time of Frontiero.

Chief Justice, I think it comes from a moral understanding today that gay people are no different, and that gay married couples' relationships are not significantly different from the relationships of straight married people. I think it came to a societal understanding. Chief Justice, just three points in rebuttal. First of all, I was not surprised to hear the Solicitor General concede that there is no unique federalism problem with DOMA, because in the Gill litigation in the First Circuit, the State of Massachusetts -- the Commonwealth of Massachusetts invoked the Tenth Amendment, and on that issue the United States continued to defend DOMA because there is no unique federalism problem with it, as the Chief Justice's question suggested.

If 10 years from now there are only 9 States left and Congress wants to adopt a uniform Federal law solely for Federal law purposes to going the other way, it is fully entitled to do that. It has the power to do that. I would say also the Federal Government has conceded in this litigation that there is a rational basis for this statute, something else to keep in mind.

I would also say that this provision is not so unique. And the Solicitor General says, well, you know, the United States is not the 51st State to be sure, but the Federal Government has interests in uniformity that no other entity has.

And we heard today that there's a problem; when somebody moves from New York to North Carolina, they can lose their benefits. The Federal Government uniquely, unlike the 50 States, can say, well, that doesn't make any sense, we are going to have the same rule.

We don't want somebody, if they are going to be transferred in the military from West Point to Fort Sill in Oklahoma, to resist the transfer because they are going to lose some benefits.

It makes sense to have a uniform Federal rule for the Federal Government. It is not so anomalous that the term "marriage" is defined in the U. The very next provision of the Dictionary Act defines "child. The last point I would simply make is in thinking about animus, think about the fact that Congress asked the Justice Department three times about the constitutionality of the statute. That's not what you do when you are motivated by animus. The first two times they got back the answer it was constitutional.

The third time, they asked again in the wake of Romer, and they got the same answer: It's constitutional. Now the Solicitor General wants to say: Well, it was want of careful reflection?

Well, where do we get careful reflection in our system? Generally, careful reflection comes in the democratic process. The democratic process requires people to persuade people. The reason there has been a sea change is a combination of political power, as defined by this Court's cases as getting the attention of lawmakers; certainly they have that. But it's also persuasion. That's what the democratic process requires.

You have to persuade somebody you're right. You don't label them a bigot. You don't label them as motivated by animus. You persuade them you are right.

That's going on across the country. Colorado, the State that brought you Amendment 2, has just recognized civil unions. Maine, that was pointed to in the record in this case as being evidence of the persistence of discrimination because they voted down a statewide referendum, the next election cycle it came out the other way. And the Federal Congress is not immune. They repealed "Don't Ask, Don't Tell.

Thank you, Your Honor. This article is from the archive of our partner The Wire. We want to hear what you think about this article. Submit a letter to the editor or write to letters theatlantic.

Skip to content. Sign in My Account Subscribe. The Atlantic Crossword. The Print Edition. Latest Issue Past Issues. Only through November Try subscriber newsletters for free. Link Copied. Windsor, and we will begin with the jurisdictional discussion. Meaning another person who is -- whose benefits are withheld, tax refund is withheld, is going to be in an identical situation to her? Who else could come in? If there is no jurisdiction here, why was there jurisdiction at the trial level?

When -- when both parties to the case agree on what the law is? What, the -- just for fun, the district judge is -- is going to have a hearing? I'm talking about why the district court, without getting to the merits, should not have entered judgment against the Government.

But here is one possible way of understanding it, perhaps the Solicitor General will disavow it, but it would go like this: The President's position in this case is that he is going to continue to enforce DOMA, engage in conduct that he believes is unconstitutional, until this Court tells him to stop. So the President has worked out -- I, personally, and for reasons in -- in my department, others think that this law is unconstitutional, but I have this obligation.

And because I have this obligation, I will not, I will continue to execute this law. I will continue to execute it though I disagree with it. And I execute it until I have an authoritative determination not to. For -- if, in fact, as you agree, the trustee or other fiduciary in my example would indeed have standing to act according to the law, even though he thinks that that law is unconstitutional because of his obligation such as under Section 2.

You agree he has the -- he has -- there is standing when he goes into court in the first place, which surely he could interpret Article II as saying and you follow it through as long as you can do it, which includes appeals, until the matter is determined finally and authoritatively by a court.

If you could do the first, what suddenly stops you from doing the second? And if he has made a determination that executing the law by enforcing the terms is unconstitutional, I don't see why he doesn't have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we'll wait till the Supreme Court tells us we have no choice. Jackson, I mean, to go back to Justice Kennedy's point, we have injury here in the most classic, most concrete sense.

Why isn't it here? JUSTICE KAGAN: But don't we often separate those two things, ask whether there's injury for Article III purposes and causation and redressability, as you say, but then say, well, sometimes when all of those are met, there's not going to be adequate presentation of the arguments, and so we will appoint an amicus or we'll restructure things?

And we do that when the Government confesses error, often. I mean, we do that several 1 times a year in this courtroom. They are in agreement about what arguments are correct legal arguments, and I can't think of a case other than the sham cases which -- which this isn't, where -- where you would find no standing or other obstacle.

And I can think of one case, which you haven't mentioned, namely, Chadha, which seems about identical. That was more than a sentence. Any case? So putting Lovett aside, since none of this was discussed, is there any, any case?

You're asking us to do something we have never done before to reach the issue in this case. It's totally unprecedented. When the presidential powers are involved, he's the lawyer for the President. So he can say, we think the statute's unconstitutional, I won't defend it. It seems to me that if we adopt your position that that would ratify and confirm and encourage that questionable practice, because if the President thinks the law is unconstitutional he shouldn't sign it, according to some view.

And that's a lot like what you're arguing here. It's very troubling. What is the test for when you think your obligation to take care that the laws be faithfully executed means you'll follow your view about whether it's constitutional or not or you won't follow your view? It's not your view. It's the President's. It's only when the President thinks it's unconstitutional that you can decline to defend it? Or what if the Attorney General thinks it's unconstitutional?

If it agrees with the result that the court reached, it doesn't appeal and then the judgment in the first instance where there was adversity is -- is the last word. So, when does the Government decide, yes, we agree with the -- the adjudication in the court of first instance and so we'll leave it there, and when does it say, yeah, we agree, but we want higher authority to participate? I know we -- we didn't permit Ms. Jackson to -- to address it. So don't run out of time on that. And you don't think that you've been deprived of your legal rights because your rights -- your obligations under the Constitution supercede DOMA, and you haven't been deprived of anything that you're entitled to under the Constitution.

So how are you aggrieved? In your brief, you argue that you are representing all three branches of the Government, is that right? So in -- in a criminal case where it's the United States v. Why did Chadha leave it open if it's the same thing? Let's go to the BLAG issue. So what do you think we meant? And I know Justice Scalia doesn't care what you think we meant. Would -- who would ever have standing on behalf of Congress? Or are you saying there's never standing?

Clement, Chadha was somewhat different because there was a unique House prerogative in question. But how is this case any different than enforcing the general laws of the United States? There's no unique House power granted by the legislation. And we say they don't. We didn't -- the House didn't know it was unconstitutional. And the House says this is constitutional. Is that a situation in which you have standing to intervene to defend the law in a different way than the executive?

So let's say that the Attorney General decides that a particular application of the statute is unconstitutional and decides to give up on that application. Or even let's say the Attorney General decides that the application of the statute might be unconstitutional, so decides to interpret the statute narrowly in order to avoid that application. Could Congress then come in? A public action, which does not exist under the Federal Constitution, is to vindicate the interest in the law being enforced.

Now, when the government, State or Federal, in fact has the interest, a special interest in executing the law, here given to the President, and they can delegate that interest to Congress, if they did, which arguably they didn't do here. But to say that any legislator has an interest on his own without that delegation to defend the law is to import in that context the public action into the Federal Government.

Now, that's -- that isn't tough. But this is, because the only interest I can see here is the interest in the law being enforced. But think of another instance where that's happened, where in all of the 12 cases or whatever that what this Court has said, without any special delegation of the power of the State or Federal Government to execute the law, without any special delegation, a legislator simply has the power, which a private citizen wouldn't have, to bring a lawsuit as a party or defend as a party to vindicate the interest in the law being enforced, the law he has voted for?

I know that there is a statute that gives the Senate specifically authorization to intervene and that there was consideration of extending that right to the House. They're concerned about the argument and you say that the House of Representatives standing alone can come into the court. Why can't the Senate standing alone come into court and intervene on the other side? The enactment of legislation requires both houses, and usually the signature of the President. I mean, think about the qualified immunity implications of that for a minute.

I'm going to have to think about that. Jackson, you have 4 minutes remaining. JUSTICE ALITO: -- if -- if a house -- if one of the houses passes a resolution saying that a particular group was always authorized to represent us, do you think it's consistent with the separation of powers for us to examine whether that's a correct interpretation of the rules of that House of Congress? JUSTICE BREYER: -- to execute the laws is in Article II, but where the President doesn't in a particular law, under those circumstances, a member of the legislature, appropriately authorized, has the constitutional power -- a power that is different than the average person being interested in seeing that the law is carried out; they can represent the power to vindicate the interest in seeing that the law is executed.

And that's a special interest, existing only when the Executive declines to do so. Jackson, before you sit down, I would like to note that you briefed and argued this case as amicus curiae at the invitation of the Court, and you have ably discharged the responsibility, for which you have the gratitude of the Court.

We'll now take a very short break and turn to the merits. Same thing? That you can have a Federal notion of divorce, and that that doesn't relate to what the State statute is?

So it's not -- it's -- it's -- I think there is quite a bit to your argument that if the tax deduction case, which is specific, whether or not if Congress has the power it can exercise it for the reason that it wants, that it likes some marriage it does like, I suppose it can do that.

It doesn't regulate all of marriage. What was the purpose of that? Was the purpose of that really to foster traditional marriage, or was Congress just looking for a convenient category to capture households that function as a unified economic unit?

But the point is that there is a difference. Now, a lot of them have gone to So if you're 17 when you get married, then no tax deduction, no medical, no nothing. The bottom line here is we can imagine -- you know, I can make them up all day.

And Congress just passes a law which takes about, let's say, 30 percent of the people who are married in the United States and says no tax deduction, no this, no that, no medical -- medical benefits, none much these good things, none of them for about 20, 30 percent of all of the married people. Can they do that?

I'm trying to think of examples, though I just can't imagine what it is. So you're saying uniform treatment's good enough no matter how odd it is, no matter how irrational. There is nothing but uniformity. We could take -- no matter. Do you see what I'm -- where I'm going?

Every one of those cases has to be decided on its own, okay? Now, what's special or on its own that distinguishes and thus makes rational, or whatever basis you're going to have here, treating the gay marriage differently? Sort of going in a circle. You're saying -- you're saying, we can create this special category -- men and women -- because the States have an interest in traditional marriage that they're trying to protect.

How do you get the Federal Government to have the right to create categories of that type based on an interest that's not there, but based on an interest that belongs to the States? JUSTICE SOTOMAYOR: So they can create a class they don't like -- here, homosexuals -- or a class that they consider is suspect in the marriage category, and they can create that class and decide benefits on that basis when they themselves have no interest in the actual institution of marriage as married.

The State's control that. I -- I hadn't thought of the relation between Section 2 and Section 3 in the way you just said. You said, now Section 2 was in order to help the States. Congress wanted to help the States. But then Section 3, that Congress doesn't help the States which have come to the conclusion that gay marriage is lawful.

So that's inconsistent. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it's pervasive. It's not as though, well, there's this little Federal sphere and it's only a tax question. Clement, for the most part and historically, the only uniformity that the Federal Government has pursued is that it's uniformly recognized the marriages that are recognized by the State.

So, this was a real difference in the uniformity that the Federal Government was pursuing. And it suggests that maybe something -- maybe Congress had something different in mind than uniformity.

The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage. It could have said "certified domestic units," and then defined this in exactly the way that Section 3 -- exactly the way DOMA defines "marriage. And -- and why? Because we can think of weird categories that are uniform. And so far, I've got those two I mentioned.

I -- I thought you didn't want the voters in one State to dictate to other States any more than you would want the courts in one State to dictate to other States. They dictate in respect to age. They dictate in respect to all kinds of things. And what I'm looking for is: What, in your opinion, is special about this homosexual marriage that would justify this, other than this kind of pure uniformity, if there is such a thing? General Verrilli?

Congress could pass a new law today that says, We will give Federal benefits. When we say "marriage" in Federal law, we mean committed same-sex couples as well, and that could apply across the board.

Or do you think that they couldn't do that? Congress could have a uniform definition of marriage that includes age, consanguinity, etc. That's your equal protection argument. It's not very responsive to my concern I'm trying to get an answer to. You don't think federalism concerns come into play at all in this, right? And we are asking is it valid otherwise. What is the Federal interest in enacting this statute and is it a valid Federal interest assuming, before we get to the equal protection analysis?

So let's say three soldiers are injured and they are all in same-sex relationships, and in each instance the other partner in this relationship wants to visit the soldier in a hospital. Your -- your position seems to me, yes, one gets in, two stay out, even though your legal arguments would lead to the conclusion that they all should be treated the same. You think, I think from your brief yesterday and today, that on some level sexual orientation should be looked on an intermediate standard of scrutiny?

Going back to the Chief's question about a law that was passed recognizing common law heterosexual -- homosexual marriages. I think even under your theory that might be suspect because -- that law might be suspect under equal protection, because once we say sexual orientation is suspect, it would be suspect whether it's homosexual or heterosexual.

The law favors homosexuals; it would be suspect because it's based on sexual orientation. Because there is no doubt that up until that point every time Congress said "marriage" they understood they were acting under the traditional definition of marriage. They were motivated by animus? It seems to me, forgetting your -- your preferable argument, it's a violation of equal protection everywhere.

Well, if it is, then all States have to have something like pacts. And if they have to have something like pacts, then you say then they also have to allow marriage. Do they have that authority? I know that. Is there any problem under federalism principles? We don't care whether you do as a matter of State law, when it comes to Federal benefits, same-sex marriage will be recognized.

Is your answer yes or no? Is there a federalism problem with that, or isn't there a federalism problem? I don't care if it works. It says, for purposes of all these Federal statutes, when we say marriage, we mean -- instead of saying we mean heterosexual marriage, we mean, whenever we use it, heterosexual and homosexual marriage.

By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. Justices Roberts, Scalia, and Alito all wrote dissents, the last two of which Thomas joined in part.

What Scalia saw as the illogic of the majority decision might be better read as a tribute to its reach:. 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.

This outcome had been anticipated, but was far from certain. The apparent net effect will be the return of same-sex marriage to California, if the opinion is interpreted, as most believe it will be, by California officials although it may take time to see exactly how this plays out.

The decision will be confined to California, although it adds a thirteenth state—the biggest and most populous one—to the list of those that allow gay marriage, and thus will have an outsized political effect. The Prop. Justice Kennedy wrote the dissent, joined by Thomas, Alito, and Sotomayor. The decision overturning DOMA was long-sought, and is a major victory.

The decision in the Prop. I was working in the White House at the time. Clinton signed the bill into law, neutralizing the issue.