Anthony Kennedy, Antonin Scalia, California, Constitutional Law, Gay, Gay Marriage, John Roberts, Lesbians, Paul Clement, SCOTUS, Supreme Court

The Supreme Court Holds That It Is Unconstitutional For The Government To Hate Gay People

The front of the Supreme Court building: ‘Equal Justice Under Law.’ (Click to enlarge.)

The Supreme Court was called to order at 10:00 a.m. sharp. The Chief Justice announced, “Justice Kennedy has our first opinion of the day in case number 12-307, United States v. Windsor. Everyone, in the bar members section at least, knew that this was the Defense of Marriage Act case.

That Justice Kennedy was announcing the opinion was significant; he wrote Lawrence v. Texas. Still, no one knew if the Court would reach the merits, since the Solicitor General had announced that the Executive Branch would not defend the constitutionality of DOMA.

Justice Kennedy is an orderly man. He set out the procedural background – Edith Windsor and Thea Spyer were married legally in Canada, then came home to New York. Their same-sex marriage is lawful where it was performed and where they lived. Spyer died and left her estate to Windsor. Windsor sought to claim an estate tax exemption for the death of a spouse. DOMA prevented the IRS from recognizing Spyer as Windsor’s spouse. Windsor paid the tax, then challenged DOMA. She won in the district court and the Second Circuit. Justice Kennedy explained how a bipartisan committee found counsel to defend DOMA, and how DOMA was defended ably in the Supreme Court.

(As an aside, Paul Clement took heat for defending DOMA for Congress. When you think about it, if he hadn’t defended it well, the Supreme Court may not have thought it could reach the issue. Paul Clement may be the unsung hero of the DOMA decision.)

So, Kennedy concluded, the Court could reach the merits of whether DOMA is constitutional.

Though a hopeful sign for those who would cheer the demise of DOMA, the decision wasn’t entirely clear….

Justice Kennedy described the increasing acceptance of same-sex marriage:

Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community. And so New York recognized same-sex marriages performed elsewhere; and then it later amended its own marriage laws to permit same- sex marriage. New York, in common with, as of this writing, 11 other States and the District of Columbia, decided that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons.

Though, Kennedy then noted, there is a legitimate federal interest in regulating some parts of marriage at the federal level. The federal government can do so for immigration purposes, and for federal benefits, and some life insurance issues.

Those in the courtroom, at least in the bar section, knew that DOMA was doomed when Justice Kennedy concluded as follows:

Though these discrete examples establish the constitutionality of limited federal laws that regulate the meaning of marriage in order to further federal policy, DOMA has a far greater reach.

It wasn’t necessarily a surprise, but there was a wave of recognition that went through the courtroom — again, at least where the lawyers were sitting.

DOMA, ultimately, went down for two reasons. First, defining marriage is normally a matter for the states. Second, DOMA was animus-based:

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government.

Because DOMA’s purpose is to put down same-sex marriages, and those who would enter into them, the Court concludes that it cannot stand:

[T]he principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution

When Justice Kennedy read that portion of the opinion, it was clear to everyone in the courtroom that DOMA was gone. A woman in the back gasped. The Chief Justice glared at her.

Justice Scalia read his dissent – it was fine stuff, right in the best tradition of a Scalia dissent, but I couldn’t help but feel that I was watching a man ineffectually watch the world change before his eyes, unaccustomed to being powerless to do anything about it.

The Chief Justice announced that Justice Scalia had the second opinion of the day – Sekhar v. United States.

Aware that no one was there to hear about the Hobbs Act, Justice Scalia said, “I know – this one will be quick.”

Turns out there’s one less way a certain kind of blackmail can be illegal.

Then the Chief announced the opinion in Hollingsworth v. Perry.

The holding, basically, is that if you’re a very wealthy person obsessed with some issue of public policy that doesn’t personally affect you, and you spend a ton of money on a ballot initiative, that doesn’t give you standing to come into federal court and complain if your initiative is ruled unconstitutional.

As I walked out of the Supreme Court after the opinions were announced, there was a huge crowd. There were so many people that the police were forcing them to spill across First Street to the grounds of the United States Capitol.

Which, when you think about it, is fitting.

Earlier: The Supreme Court Rules In Two Major Gay Marriage Cases


Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.

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