DOMA and Deference
Eduardo Moisés Peñalver June 26, 2013 - 8:45pm
One of the best comments on today's DOMA case that I've read so far is this piece by Northwestern Law Prof Andrew Koppelman. Here's a taste:
DOMA declares, in pertinent part, that the word "marriage," wherever it appears in the U.S. Code, "means only a legal union between one man and one woman as husband and wife." The rule applies indiscriminately across all federal laws, producing some very strange results. Federal ethics rules bar officials from participating in matters in which their spouses have a financial interest — but not if they're same-sex spouses. It is a federal crime to assault, kidnap, or kill a member of the immediate family of a federal official in order to influence or retaliate against that official — but not if you do that to a same-sex spouse. Ditto Social Security, federal pensions, taxation of inheritances (which was the issue in today's case), and over a thousand other provisions.
Justice Kennedy had no trouble recognizing this for what it is: a "bare desire to harm a politically unpopular group." The statute lashes out at same-sex couples with no attention at all to the purposes of any of the underlying laws it affects.
While Koppelman is favoraby inclined towards Kennedy's opinion, I found it underwhelming on the judical craftsmanship front. Kennedy did not want to commit to a form of heightened scrutiny for laws burdening gay people, but his opinion plainly went beyond the sort of deferential, rational basis scrutiny the courts normally mete out in equal protection cases that don't involve so-called "suspect" classifications.
Explicitly applying heightened scrutiny in Windsor would have helped reduce some of the whiplash I felt reading the DOMA and Voting Rights Act cases back-to-back this morning. That whiplash came not so much because of any blatant inconsistency in the bottom-line results or methodology (no deference to Congress!). But there was something a little bit jarring about the shifting lineups ready to lament the Court's lawless invalidation of "demoractically enacted legislation" That bothered Justice Scalia a lot more today than yesterday, when he was busy dismantling the democratically enacted Voting Rights Act. Since the 15th Amendment expressly delegates to Congress the responsibility to safeguard voting rights against racial discrimination, I think the Court's "liberals" have the better end of that deference-tension, but a little more candor about the level of scrutiny they were applying in the DOMA case would have been welcome.
About the Author
Eduardo Moisés Peñalver is the John P. Wilson Professor of Law at the University of Chicago Law School. He is the author of numerous books and articles on the subjects of property and land use law.