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Friday, June 28, 2013

On judicial decisions and political philosophy

In my earlier blog post about the two same sex marriage decisions (see here), I excoriated Justice Scalia's dissent in the Windsor case.  I wanted to explain my reaction a bit more than I did there.

Basically put, the job of a judge is to expound on the meaning of the law.  While personal political philosophies are going to have some influence on any decision given that one's political philosophy shapes one's worldview, this philosophy should not completely overwhelm an objective analysis of the case.  In a similar way, a historian should never allow his/her personal preferences to color the way that he/she looks at history (or at least as little as possible).  For example, while I disagree with what Justice Alito said, his dissent falls well within the bounds of judicial interpretation.  Justice Scalia's, on the other hand, reads like a pamphlet written by a political partisan.

Lest anyone think that this is solely influenced by my own opinion on this case, I also disagree (as I mentioned in the same blog post) with the dissents of Justices Brennan and Marshall in Gregg v. Georgia and with the reasoning by Chief Justice Earl Warren in Brown v. Board of Education.  While I do agree with the results of Chief Justice Warren's decision, his reasoning was based on sociology and not on legal reasoning.  Like Justice Scalia in Windsor, Chief Justice Warren allowed his personal beliefs to dictate his decision rather than allowing the law to do so.

Part of the problem here is that some people want the world to change too quickly rather than allowing change to come in a more gradual manner.  Change is never easy for anyone to accept, and if it is forced onto people, it becomes even harder to accept, particularly if the change is a massive one.  Change is not always good (no matter what some people say or seem to think) and by forcing change, it causes people not ready for the change to react badly.  If something is right, it will come to be accepted by people if it comes properly.

On the same-sex marriage decisions...

On Wednesday, I posted some preliminary thoughts about the two same-sex marriage cases that had been decided by the Supreme Court.  The two cases were Hollingsworth et al v. Perry et al and United States v. Windsor et al.  Hollingsworth dealt with whether California's Proposition 8 was constitutional.  Windsor dealt with the Defense of Marriage Act (hereafter called DOMA .  What I propose to do today is to briefly summarize each case and examine the Court's decision as well as important points from the dissent.  I will end with some of my personal thoughts on the cases.  I will start with Hollingsworth and then move onto Windsor.

Proposition 8 was passed in California in 2008 to overturn a California Supreme Court decision (In re Marriage Cases) that said that the limitation of marriage to opposite sex couples was a violation of California's Constitution.  Since Proposition 8 was a constitutional amendment, it had the effect of enshrining the idea that same sex couple could not marry into the California Constitution and thereby inculcate it against challenges under the California Constitution.  After this, a suit was brought against Proposition 8 under the Due Process and Equal Protection clauses of the US Constitution.  The district court judge issued a decision that Proposition 8 was a violation of the Due Process and Equal Protection clauses of the Constitution.  California officials decided not to appeal the decision, so the sponsors of the proposition decided to appeal the decision themselves.  The Ninth Circuit Court of Appeals asked the California Supreme Court if the sponsors had the standing to continue the appeal.  The California Supreme Court said that the sponsors did have standing and so the Ninth Circuit Court heard the case and affirmed the decision of the District Court.  After this, the sponsors appealed to the US Supreme Court.

The idea of standing is an important one in US courts (I am not sure about other countries though).  Under the Constitution, courts can only hear a case if there is actual injury involved.  The injury need not be physical, it can be legal, financial, or anything else which will actually harm the party involved.  In other words, the courts may not issue advisory or speculative decisions unrelated to actual cases.  In this particular case, since the officials involved in the enforcement of Proposition 8 declined to appeal the decision overturning it, the sponsors of the proposition asserted that they had the right to appeal the decision.  The Supreme Court (in an opinion written by Chief Justice Roberts) ruled that they did not have this right.  While they could appeal in California courts, they could not appeal the decision in federal courts because they could not show that they were actually harmed by the decision since their injury was generalized and not specific to them.  Therefore the decision of the Ninth Circuit Court was vacated and remanded for new decision.  In other words, the Ninth Circuit Court has been ordered to issue a new decision saying that the sponsors of Proposition 8 lack standing and thereby upholding the decision of the District Court declaring Proposition 8 unconstitutional.  In doing so, the Supreme Court made no decision on the merits or lack thereof on the proposition itself.

The dissent by Justice Kennedy argued that the Court should have respected the California Supreme Court's decision regarding standing and ruled on the merits of the case itself.  Justice Kennedy said that the Court should defer to the state courts when it came to rulings regarding state laws as is has done in the past.  Justice Kennedy fears that this decision could lead to an erosion of the primary reason behind the initiative, which is to "'adopt constitutional amendments or statutory provisions that their elected public officials had refused or declined to adopt'" (p. 6 of the dissent)  since the public officials, who were evaded through the initiative process, could simply refuse to defend the law in court.

DOMA was a law passed in 1996 in response to a decision by the Hawaii Supreme Court (Baehr v. Miike) holding that the state had to show compelling reasons to defend the denial of marriage licenses to same sex couples.  DOMA had three parts.  The first part was the title, the second part said that no state could be required to recognize any marriages that are legal in other states if they are illegal in that state, and the third part said that the federal government would only recognize opposite sex marriages for federal purposes.  In 2007, Edith Windsor and Thea Spyer were married in Ontario, Canada.  New York law recognized them as a married couple due to a New York law stating that if someone was legally and validly married elsewhere, then that marriage would be recognized by the state.  In 2009, Spyer died and Windsor applied for an exemption from the federal estate tax as Spyer's spouse.  She was denied this benefit under DOMA and she paid the tax, but appealed the decision.  The Obama administration, viewing DOMA as unconstitutional, refused to defend it in courts, but continued to enforce its provisions.  A group of congressmen (Bipartisan Legal Advisory Group [BLAG]) defended DOMA's constitutionality in the courts.  The district court ruled Section 3 unconstitutional and the 2nd Circuit Court agreed.  Before the Circuit Court heard the case, Windsor applied for a writ of certorari from the Supreme Court.

The Supreme Court (in a decision written by Justice Kennedy) held that Section 3 of DOMA was unconstitutional because it violated the Fifth Amendment.  Even though the decision did not explicitly apply it, the decision did note that DOMA violated the principle of federalism as well.  Federalism is that idea that the federal government and the state governments each have separate spheres of power as well as having overlapping powers.  Marriage has always been the bailiwick of the states.  What DOMA did was to impose a two-tier system onto certain states which recognized same sex marriage.  For state law purposes, same sex couples would be recognized and would receive the same benefits as opposite sex couples.  However, for federal purposes these same couples would not be extended the benefits, a clear case of the federal government overreaching its authority and imposing its will on an area which has traditionally been left to the states.  This two-tiered system discriminated against same sex couples and therefore violated the Fifth Amendment of the Constitution.

In his dissent, Chief Justice Roberts argued that the Court did not have the jurisdiction to hear the case because of the fact that the Obama Administration agreed with Windsor.  Therefore, there was no question to adjudicate and no jurisdiction.  In a separate dissent, Justice Scalia argued that there was no jurisdiction, however since the majority had issued a decision on the merits, he issued his own.  He said that Court did not have the power to invalidate DOMA.  In a third dissent, Justice Alito argued that the Court had the standing to hear the case due to the participation of BLAG.  He also argued that Section 3 of DOMA was valid and that the Court should not impose its views on the country.

First, some thoughts about Hollingsworth.  This decision is limited solely to California insofar as marriage is concerned.  Regarding the issue of the initiative, I believe that Justice Kennedy's fears are misplaced.  Since this decision is about standing in the federal courts, it will not impact the state courts which are free to use other definitions of standing.  While I sort of wish that the Court had ruled on the merits, I do see the wisdom in their approach.  Trying to make too much of a change too quickly causes great conflicts and the Court was obviously looking to avoid that problem at this time.

Second, some thoughts on Windsor.  I must confess astonishment at Scalia's dissent.  Up until now, I have held the dissents of Justices Brennan and Marshall in the Gregg v. Georgia to be among the most inane and nonsensical dissents I have read from the Supreme Court.  With this decision, Justice Scalia managed to surpass them.  To assert with a straight face that the Court cannot overrule DOMA is breathtakingly dishonest and (quite frankly) stupid.  There has been a long history, going back to the Founding Era, of the courts having the ability to rule on the constitutionality of statutes passed by Congress.  Alexander Hamilton proposed it in the Federalist Papers and Chief Justice Marshall enshrined it as a constitutional principle in the case Marbury v. Madison.  So long as the case before the Court is properly adjucated, the Court has pretty much unfettered power to rule an act of Congress (or a state) as unconstitutional *IF* that law is being used in the proceedings.  Justice Scalia's dissent reads like a political pamphlet written by a member of the Tea Party and not as a legal decision from a judge.  Frankly, I am astonished at how far Justice Scalia has fallen.  He has always had an acerbic wit and pen, but to blatantly argue from political (as opposed to judicial) principles is just beyond the pale.

I have more respect for Justice Alito's dissent.  While I disagree with his decision, I think it came from the same place as the Hollingsworth decision, a desire not to create a conflict that would damage the nation and the Court.  From what I can see, I think that Chief Justice Roberts wrote his dissent with the same concern.

I do also want to note that the decision of the Court does not force any state to recognize same sex marriages preformed in another state.  As much as I may despise Justice Scalia's dissent, he does have a point when he says that this decision creates a new two-tiered system, this time between different states.  That being said, I think that the Court did the right thing in not forcing all states to recognize same sex marriage.  Firstly, that issue was not before the Court in this case and so the Court rightly did not address it.  Second, since the issue of marriage licenses is a state issue, the Court does not have that power unless a constitutional amendment of some sort passes.

Sometime over the next couple of days, I intend to look at the VRA case from earlier this week and write about that.  Until then, let me know your thoughts.  Thanks!

Wednesday, June 26, 2013

Some preliminary thoughts on today's SSM SCOTUS decisions...

In the interest of full discolosure, I have not yet read the decision for either Hollingsworth et al v. Perry et al (the Proposition 8 case) or United States v. Windsor et al (the DOMA case).  I just wanted to make some preliminary comments based upon some news reports.  As such, these comments are subject to revision after I have a chance to read and digest the decisions for myself.

In Hollingsworth, the Supreme Court held that the petitioners lacked the standing to sue and therefore upheld the decision of the district court to overturn it.  What happened here is that the state refused to defend Prop 8, so a group of citizens got together to defend it.  Therefore, they could not sue in federal court.

In Windsor, the Court said that the DOMA (Defense of Marriage Act) was unconstitutional because it discriminated against same sex couples in denying them government benefits.  What the case does not do is force states to recognize same sex marriages.  It does, however, require the federal government to recognize same sex marriages for the purposes of tax benefits, Social Security, estate purposes, etc.  Basically, this ruling is saying something I said earlier (see my October 28, 2012 and October 17, 2012 posts) about civil marriage.  It is Justice, pure and simple.

I also intend to read about the VRA case from yesterday.  Based on what I read about it, the decision is not nearly as bad as people fear.