On Wednesday, the Supreme Court overturned the Defense of Marriage Act in its decision on United States v. Windsor. DOMA, passed by Congress in 1996 and signed into law by President Clinton, defined marriage as a legal union between one man and one woman. As a result, same sex couples were denied federal benefits such as social security survivors’ benefits and filing of joint tax returns even if their marriage was recognized under the laws of the states.
In holding DOMA unconstitutional, Justice Kennedy wrote:
DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency…The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. 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.
This is a victory for equality. Plain and simple. A class of people who were otherwise denied federal benefits largely because others did not approve of their choices, are now treated as equals. Support poured in from all over following the ruling, including from the man who signed DOMA into law:
But as often is the case, progress comes with a price. Lost in the outpouring of support for equality for gays is the Court’s dangerous expansion of its role in American government. As Justice Scalia wrote in his dissent, the Court’s decision sprang “forth from the same diseased root: an exalted conception of the role of this institution in America.” The Supreme Court’s authority comes from the Constitution, of which Article 3 grants the Court power to determine “cases and controversies.” The problem with the Court’s DOMA decision is that there was no case or controversy before the Court.
The plaintiff, Edith Windsor, argued that DOMA unconstitutionally denied her benefits when her same-sex spouse died. The Department of Justice agreed with Windsor that DOMA was unconstitutional in the District Court and the Court, therefore, ruled in Windsor’s favor. Despite a ruling it agreed with, the DOJ then appealed to the Second Circuit, who also ruled that DOMA was unconstitutional in accordance with both Windsor’s and the DOJ’s arguments. Despite two rulings in which both parties agreed on the outcome, the DOJ then appealed to the Supreme Court. In front of the Supreme Court, both Windsor and the DOJ again argued that DOMA was unconstitutional. From start to finish, this case has progressed even though there is no case or controversy – both parties agreed and indeed argued that DOMA was unconstitutional, and won at each level.
“What, then, are we doing here?”, Justice Scalia poignantly asked.
Never before has the Supreme Court ruled on a case in which every party agreed with the outcome of the decision below. Indeed, it would seem too obvious that it cannot, given that its Constitutional mandate is to decide “cases or controversies.” This precedent is a dangerous one. Congress’ job is to pass laws, which it did in the case of DOMA. The Court’s job is to decide cases. As part of that job, the Court often determines whether laws passed by Congress are constitutional, but that is only a necessary outgrowth of its job in deciding a case where there is an injured party. The Supreme Court’s ruling in the DOMA case vastly expands the Court’s power and allows it to decide cases where there is no injured party, simply to give its stamp of approval or disapproval.
That is not the balance of power set up by our Founders. While the Court’s ruling is a victory for equality, it is indeed a diseased root for the balance of power in American government.
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