Homosexual marriage has come about in this country primarily by federal judicial order. Before the Supreme Court’s groundbreaking homosexual marriage decision in the Windsor case in May 2013, only five states had created homosexual marriage by legislation, and today still only nine states have done so. Since Windsor, twenty states have had their marriage laws repealed by federal court order. Thus, the Windsor decision, a landmark in constitutional law and judicial supremacy, has already affected society and government in a fundamental way and is destined to take its place alongside Brown v. Board of Education (1954) and the abortion decision in Roe v. Wade (1973) as society changers. In this article, third in a series, we explore how Windsor came about and what its conclusions are—or apparently are. We will see that Windsor stands for the judicial equivalent of branding defenders of marriage as “homophobes,” but also for the judicial endorsement of the “evolution” of American sexual mores. The next essay of this series will challenge the notion now being assumed by the lower federal courts that Windsor requires them to negate state marriage law. The fifth and last essay will discuss the question “Is Marriage Rational?”
After the supreme court of Hawaii in 1993 became the first public body to attempt to redefine marriage in order to accommodate homosexual relationships, the United States Congress, in its passage of the Defense of Marriage Act (DOMA) in 1996, defined marriage in federal programs as requiring a man and a woman. In a previous essay in this series, we saw that the supreme court of Massachusetts (2003) and a federal district court in California (2010) could not have created homosexual marriage without the formulations and inspiration of Supreme Court Justice Anthony Kennedy’s opinions for the Court in the homosexual cases of Romer v. Evans (1996) and Lawrence v. Texas (2003). For without those two cases, there was no law or precedent with which to overturn the understanding of marriage that had always existed in human history. Marriage had existed on its own quite apart from American constitutional doctrines of “equal protection” and “due process.” A new kind of “law” was needed, and Justice Kennedy has supplied it with his worldview of sexual evolution and liberation in Romer, Lawrence, and now in Windsor.
Federal district court: marriage is irrational
The path to the Supreme Court’s 2013 Windsor decision commenced in New York in 2010 when plaintiff Windsor sued the federal government in federal district court for a refund of her federal estate taxes she had paid when she received the estate of her now-deceased lesbian lover. At the time, New York did not have homosexual marriage; the couple had been married in Canada. The court began by saying the couple had been in a “committed relationship” since 1963. (Such notations of justification by “commitment” regularly occur in the homosexual marriage cases. There is never the notion that the plaintiffs have been required to prove that their relationships are “committed,” a normal requirement in any lawsuit: When you make an assertion, you must prove it. However, perhaps homosexuals do have a point about discrimination against them. They may be the only married persons in the era of the sexual revolution and no-fault divorce held to a standard of loyalty in marriage.) So, it seems that their marriage was a setup to lay the basis for the lawsuit. Plaintiff Windsor claimed that the IRS’ refusal under DOMA’s definition of marriage to recognize her homosexual marriage denied her equal protection of the laws and of access to federal benefits. Thus, as we have already seen in previous essays, the right to be publicly funded is a major objective of the homosexual legal strategy. The United States Department of Justice, stating that President Obama and Attorney General Holder thought that DOMA was unconstitutional, took the unprecedented step concerning such a major issue of refusing to defend the law.
So, as in the California suit discussed in the previous essay, marriage did not get its day in court. When the United States attorney general himself announces that he will not defend a law passed—and passed overwhelmingly—by Congress, that is all the license a court needs to be creative in rejecting the law. Congress hired its own counsel to defend DOMA. But of course, that lawyer was the second string, and the message was clear. So, with both sides agreeing, the reality was that there was no “case or controversy” under Article III of the Constitution. Windsor was not married under American law and had no right to government benefits that had been enacted with marriage in mind. By normal procedural standards Windsor did not have any “standing” to pursue her suit since her foreign marriage had clearly been excluded by DOMA—or, if she did, every American citizen has equal standing to sue every federal statute at any time. Since all law involves inclusions and exclusions and is based on categories and sub-categories of persons, the judicial standards of the federal homosexual cases could be made open to any other kind of lawsuit on any legislative subject.
The district court allowed Windsor’s case to proceed. While citing the Supreme Court for the standard principle of law that “the burden of proving a statute unconstitutional falls on the party attacking the legislation,” the judge disregarded that principle and, like all cases under consideration in this series of essays, focused her entire opinion on attacking the justifying arguments put forth not by the plaintiffs but by the defenders of the law. As for the separation of powers and the prerogatives of the legislature, the court mentioned it in one sentence and then just as immediately ignored it. The court’s decision was handed down in 2012, and meanwhile the legislature of the state of New York had enacted homosexual marriage in 2011.
The judge, following the Supreme Court’s admonition discouraging federal courts from creating new “suspect classes” with their requirement of “strict scrutiny” by the courts, decided as an alternative that DOMA’s definition of marriage had no “rational basis” and was therefore unconstitutional. In constitutional jurisprudence, “rational basis” is the easiest standard by which legislative classifications in statutes are routinely upheld by the courts, that is, it is the presumed “paradigm of judicial restraint” by which all legislation is upheld if “any statement of facts reasonably may be conceived to justify it,” as the district court itself quoted the Supreme Court. For a private plaintiff to have a court negate a law on the basis that the law has no “rational basis,” he must disprove, quoting the Supreme Court, “any conceivable basis which might support it,” that is, every conceivable basis that anyone might think up at any time, regardless of whether the legislating body had thought it, stated it, or relied on it. Thus, the only form in which marriage has ever existed in history was found to be “irrational” and so irrational that it could not survive the most judicial-hands-off standard in constitutional jurisprudence.
The district court considered four aspects of DOMA and found them all wanting, that is, “irrational.” (See the last article in this series, “Is Marriage Rational?). The court said that “a number of states now permit same-sex marriage,” an inaccurate and seemingly deliberately deceptive bit of rhetoric when at the time the suit was filed in 2010, New York did not have homosexual marriage, and only Vermont and New Hampshire had legalized same-sex marriage by legislative enactment. And the only other states recognizing same-sex marriage were Massachusetts and Iowa by order of their state’s supreme courts. When the Windsor case was decided by the district court, however, in June 2012, New York had legalized same-sex marriage to join those four other states as the only states where same-sex marriage was recognized. The court ordered the federal government to refund Windsor’s estate tax. But, unlike the California case, Perry v. Schwarzenegger, and unlike the Supreme Court, as we will see, the Windsor district court did not demonize supporters of traditional marriage and did not deal with the alleged issue of “discrimination” against homosexuals. However, it did set the stage by referring to Romer and Lawrence several times and quoting Justice O’Connor’s concurrence in Lawrence about “a desire to harm a politically unpopular group.” The district court did not issue its own redefinition of marriage.
In every lawsuit, civil or criminal, the party with the legal status “plaintiff” is required to prove first that its lawsuit establishes a “case or controversy” and second that it can bear the burden of going forward and proving the substance or “facts” of its case. A defendant only “defends” against the case that the plaintiff has already laid on the table. But the district court in Windsor only considered the legislative history and purposes of DOMA as stated by Congress. It paid no attention to what plaintiff Windsor had said, proved, or attempted to prove. It reversed the burden of proof. And has already been noted in the previous essay and will be seen again in later cases to be considered, this has been the structure of all homosexual marriage cases. And what is more about the irregularities of this lawsuit is that plaintiff Windsor was allowed to sue at all in her role as a taxpayer. The general and strong constitutional rule is that individual or groups of taxpayers may not initiate lawsuits against taxes, the reasoning being that the interest of individual taxpayers are on the one hand, too remote and minute, and on the other hand, too much in common with all citizens to provide an individual standing to sue.
No trial was held, and the district court overturned DOMA in a “summary judgment” against it. A court is permitted to issue a summary judgment when there is essentially no dispute on either the facts or the law. So, in the year 2012, a federal court found that the only definition of marriage (man and woman) that ever existed in the history of the world in any country until the last decade was so “irrational” that the justification for it could be summarily dismissed. And the legislative branch, the Congress, had been irrational to do so. And as for Congress’ power of the purse, the district court decided that Congress may not exclude an “arbitrarily chosen group” from access to public funds.
Since lawsuits are supposed to be concerned only with the interests of the parties, the Department of Justice, if it had not colluded with plaintiff Windsor and been so eager to establish homosexual marriage, could have ended everything at the district court level by simply giving Windsor her tax refund, as the court ordered. Windsor had won. And the federal government had agreed with her. So, the Windsor “lawsuit” went like this at the district court level: A taxpayer sued the federal government claiming that a federal law was unconstitutional and that she had been denied economic benefits that she wanted. The federal government, instead of defending that federal law, as it was constitutionally required to do, joined the lawsuit on the side of the taxpayer. When the district court ruled in favor of the taxpayer, which was what both the taxpayer and the federal government wanted, the federal government, switching sides and now arguing that a federal law had been overturned, appealed the district court’s decision to the federal appeals court.
The federal appeals court: a new class of persons
The appeals court contradicted the district court and held that Congress’ motivations were sufficiently rational to uphold DOMA. However, even though Congress may have been rational, that was not good enough. The court was going to apply the stricter standard to see if DOMA could be justified. So, although the court said that it would not invent a new “suspect” class—of which the only ones identified by the Supreme Court are race, ethnicity, and alienage—it decided to invent a new “quasi-suspect” class.
In fending off arguments that the homosexuals are not an identifiable class because they do not have a perceivable or visibly distinguishing characteristic, the appeals court shrugged off the fact that no federal or state court had ever held that homosexuals were a separate class. Instead, the court essentially held that homosexuals become a class when they are rejected for federal benefits. So, what the court did was to allow homosexuals, unlike persons who are identifiable by their race or sex, to assert that they are members of the new “class” at their own say-so.
In the usual circular reasoning that applies in this field, the appeals court said that “the characteristic is necessarily revealed in order to exercise a legal right,” but not mentioning that there was no such legal right in federal law and that the appeals court was ipso facto supplying that right and so thereby holding that Windsor had been denied in the past the right that it was just creating on the spot. The court also decided, in one of its extra-legal non sequiturs, that the “seemingly small number of acknowledged homosexuals” in positions of political power justified their judicial protection as a class—even though stating in the immediately preceding sentence that it was “difficult to know” if this was true.
Once the appeals court ruled that homosexuals were a quasi-suspect class, the game was over. For, there was no reason for a federal court to create a new aggrieved class without intending to vindicate that class. For, if the district court could not justify traditional marriage on the lower standard of rationality, the appeals court was not going to justify it while assigning a higher standard to it. With respect to whether marriage was connected to childbearing and child raising, the appeals court agreed that “the promotion of procreation” was a bona fide governmental objective. But it held that DOMA failed at that because it did not “incentivize” or “encourage” heterosexual couples to do anything they were not already going to do. As for the power of the purse, the appeals court cited and agreed with the district court that Congress may not exclude homosexuals from public funding and, indeed, went farther by declaring that DOMA “was not substantially related to fiscal matters” because it was “so broad.”
The supreme Court: homophobia and evolution in constitutional law
In its 5-4 decision in May 2013, the Supreme Court, essentially ignoring the power of Congress to legislate and to appropriate, touched very lightly on a few principles of constitutional law and overturned the definition of marriage in DOMA. Instead, it incorporated and extended its Romer/Lawrence themes into the field of marriage. Reagan-appointee Justice Kennedy, joined by the four Democratic appointees, Justices Ginsburg, Kagan, Sotomayr, and Breyer, authored the opinion. Republican appointees Scalia, Thomas, Alito, and Roberts dissented.
One of the attacks on DOMA that had been presented by the plaintiffs and by homosexual advocates in the public debate was a critique of Congress based on federalism, that is, that Congress by establishing a uniform definition of marriage in federal law had somehow invaded the rights of the states who might establish their own definitions, thus producing conflict between opposing definitions within a state and between states. But when the case reached and was decided by the Supreme Court, Justice Kennedy had little to say about federalism as a constitutional doctrine. And he explicitly concluded that it was “unnecessary” to make a formal ruling on federalism and that the decision was “quite apart from federalism.” However, he still wrote at length that DOMA was intruding on state power to define marriage, saying that “the Federal Government through our history, has deferred to state-law policy decisions with respect to domestic relations.” So, a kind of states-rights without federalism—even though no state was involved in the suit. DOMA, of course, had no effect on state laws. Its subject was federal law, and one of its purposes was to protect not undermine state law.
But Justice Kennedy could have stopped and had this reverse federalism be the basis of his opinion. Justice Alito in his dissent said that Kennedy’s opinion had “whiffs of federalism.” Chief Justice Roberts in dissent was emphatic if wistful that the “judgment is based on federalism.” And Justice Scalia likewise said that Kennedy’s opinion initially “fool[ed]’” the reader into “thinking that this is a federalism opinion.”
Although he concluded that the decision of the Court was based on the “equal protection” aspect of the Fifth Amendment’s Due Process Clause, Justice Kennedy avoided any really substantive and extended consideration of equal protection law. And no extended discussion or balancing between rational basis and suspect or quasi-suspect classes occurred. No new suspect class of quasi-class was created, and no federal constitutional right was established. Instead, citing his own opinions in Romer and Lawrence, Justice Kennedy invented a new kind of constitutional issue: that government cannot be mean to homosexuals. DOMA had a purpose and effect to “demean…to disparage…to injure” homosexuals and prevent them from living “with pride” and “recognition.” It was an “indignity” that “humiliates.”
Therein, Kennedy effectively incorporated into constitutional law the public tactic fiercely insisted upon and policed by homosexuals and their publicists in the media: that any and all opponents of homosexual marriage are “homophobes” and “haters.” In dissent, Justice Scalia responded with words that could have just as much been Justice Kennedy’s and the majority’s. He said that they were accusing the supporters of DOMA—that is, the United States Congress and all the state legislatures until 2009 (Vermont)—as acting “with malice” and “with hateful hearts” and “declaring anyone opposed to same-sex marriage an enemy of human decency” regarding an institution that “had been unquestioned in virtually all societies for virtually all of human history.” Concerning the connection between marriage and religion, Justice Kennedy pointed out that the House of Representatives had stated as one of the bases for marriage that “heterosexuality better comports with traditional (Judeo-Christian) morality,” although he ignored that the House had also said that “the civil act of marriage is separate from the recognition and blessing of that act by a religious institution.” And throughout the decision, Justice Kennedy referred to the government benefits and tax breaks that homosexuals were missing because marriage was denied to them.
Instead of the Congressional and universally understood definition of marriage, Justice Kennedy redefined marriage as an “intimate relationship between two people.” It will be remembered from a previous essay in this series that the Massachusetts Supreme Court, also relying on Romer, had similarly re-defined marriage in 2003 as a “committed relationship.” And the federal district judge in the California homosexual marriage case had called marriage “a union of equals.”
Then, Justice Kennedy turned to evolution. Today, he said, marriage was based on an “evolving understanding of the meaning of equality.” He said that historical marriage “came to be seen in New York and certain other States as an unjust exclusion.” However, in describing this evolutionary groundswell of change across the country, Justice Kennedy neglected to mention that on the date of the decision, June 26, 2013, of the twelve states that had homosexual marriage, only four had adopted it by acts of their legislatures or by voter initiative. The other eight had been ordered to do so by their supreme courts or by federal courts. And, of course, the other thirty-eight states remained with their laws of man-and-woman marriage. So, against Kennedy’s “evolving understanding of the meaning of equality,” and his keen advocacy of “the responsibility of the States for the regulation of domestic relations,” as it turned out, seventeen years after DOMA was passed, and the first evolution of a state legislating homosexual marriage having been only by Vermont in 2009, the overwhelming majority of the states had abided and not evolved. In dissent, Justice Scalia did not call it “evolution” but “a breathtaking revolution of our Article III jurisprudence.”
Next: “Implications of Windsor: Does it really require the overturning of state marriage laws?” And, last: “Is Marriage Rational?”
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