A Publicity Update and then Three Thoughts on Justice Scalia's Dissent in Windsor

By Mike Dorf

T'is the season for constitutional law professors to bloviate for the press--and so I've been doing my bit by fielding calls from reporters for CNN, Salon, the Wall Street Journal, USAToday, Bloomberg News, and the Star Ledger.  As I should have expected, some of these papers couldn't resist putting my line about "the first gay Justice" in their headlines, although, to their credit, they did include the full context to make clear that I was speaking metaphorically.  Anyway, it looks my yearly fifteen minutes are just about up, so now I'll go back to the more serious business of deeper analysis.

* * *

Justice Scalia's dissent in United States v. Windsor contains a good deal of food for thought.  Here I'll discuss three morsels.
1) The Role of the Court

In response to one of the reasons that Justice Kennedy and the majority offer for finding that the case was justiciable, Justice Scalia took issue with the former's characterization of judicial review of legislation as the "primary role" of the Supreme Court.  Justice Scalia wrote:

declaring the compatibility of state or  federal laws with the Constitution is not only not the
“primary role” of this Court, it is not a separate, freestanding role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us. Then, and only then, does it become “‘the province and duty of the judicial department to say what the law is.’”

In this passage, Justice Scalia is espousing a view that sometimes goes under the name "departmentalism."  The core idea, as espoused by scholars like Larry Kramer (in his book, The People Themselves) is that Marbury v. Madison means only that the Court--no less but also no more than the other branches--gets to interpret the Constitution in the course of doing its job.  And for the courts, the job is deciding cases.  That's what Justice Scalia means when he says that the power of judicial review of legislation arises "by accident."  It doesn't detract from the role of the other branches when they do their jobs.  Thomas Jefferson was a departmentalist; Abraham Lincoln espoused a version of departmentalism in his First Inaugural; Reagan's Attorney General Edwin Meese favored departmentalism; and various scholars on both the left and the right have, in the last couple of decades, favored a return to departmentalism.

Thus, Justice Scalia's espousal of departmentalism is respectable.  But--and this is a big "but"--Justice Scalia is wrong in asserting, as he asserts in his Windsor dissent, that departmentalism simply is the reigning approach to the Court's role.  Justice Scalia does not even believe that.  After all, he joined Justice Kennedy's majority opinion in City of Boerne v. Flores, which relied on Marbury to find that the Court was the ultimate arbiter of the Constitution's meaning, even when Congress has a different understanding.  Justice Scalia specifically declined to join part of Justice Kennedy's opinion, but not the part that adopted a non-departmentalist account of Marbury.  And of course, earlier this week, in Shelby County v. Holder, Justice Scalia joined CJ Roberts' decidedly non-departmentalist opinion invalidating the coverage formula of the Voting Rights Act.

To be sure, neither Boerne nor Shelby County involved non-departmentalism with respect to jurisdiction, but so what?  The core complaint of departmentalism is that it usurps power from the legislature, and that is even more of a problem with respect to substance than with respect to jurisdiction.  Moreover, there are other ways in which the modern Court functions in a non-departmentalist fashion, even with respect to jurisdiction.  The discretionary certiorari process is the most obvious.  The Court does not simply decide cases.  It chooses cases that are important precisely because the Court needs to resolve legal uncertainty, to say what the law is.  So Justice Scalia is technically right that the Court's law-declaration power originally may have arisen by accident, but it is now a firmly established feature of our system of government.

2) Rhetoric

In his dissent in Lawrence v. Texas, Justice Scalia compared the Texas law banning "homosexual sodomy" to laws banning "bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity."  In his Windsor dissent, Justice Scalia described the majority's reasoning as "legalistic argle-bargle" (marking the first usage of the term "argle-bargle" in the U.S. Reports!) and compared laws banning SSM to laws disallowing "no-fault divorce, polygamy, or the consumption of alchohol."  Some reports on the case (such as this one on HuffPo) have described the Windsor dissent as a rehash of the Lawrence dissent, and in jurisprudential substance it is.  But at least with respect to the rhetoric, I detect a tiny softening.

Note that Justice Scalia almost certainly disapproves of most of the items on his list of horribles in Lawrence.  By contrast, we KNOW that Justice Scalia does not disapprove of everything on his list in Windsor. As a wine connoisseur, Justice Scalia surely would not support bans on consumption of alcohol as a policy matter.  Thus, I infer that in Windsor Justice Scalia is not saying that same-sex marriage is indistinguishable from lots of other stuff that he regards as sinful; he is saying simply that whether to permit same-sex marriage should be a policy question left for legislative judgment.  As a matter of substantive argument, that's all he was saying in Lawrence too, of course, but his provocative choice of examples there predictably gave the impression that he believed that an expression of gay love between consenting adults was morally indistinguishable from bestiality. (It also gave the impression that he thought that the government could, consistent with the Constitution, ban masturbation, but let's not go there.)

Accordingly, I detect a tiny bit of progress.  Justice Scalia is not about to march in a gay pride parade, but he does seem to realize that expressions of completely open disgust for gay people are no longer acceptable.

At the same time, Justice Scalia does play the victim with respect to SSM.  He seems to acknowledge--if tacitly and grudgingly--that it is legitimate for polite society to shun homophobia, but he is outraged that the Windsor majority equates support for DOMA and opposition to SSM with homophobia.  There are lots of reasons one might have for opposing SSM, Justice Scalia suggests, that have nothing to do with homophobia.  This is nonsense, of course.  As the trial court proceedings in Perry demonstrated, when pressed for an actual justification for banning SSM, the best the Prop 8 sponsors could do was to talk about accidental procreation by unmarried heterosexuals.  But the point was obscured in Windsor because the federalism angle introduced second-order concerns--like the choice-of-law problems to which Justice Scalia pointed in his Windsor dissent.

3) Level of Scrutiny

If you believe that the Congress that enacted DOMA was concerned about choice-of-law issues, then I have a bridge I'd like to sell you.  Now Justice Scalia says this shouldn't matter.  Under traditional rational basis scrutiny, it doesn't matter what the actual motive of the legislature was; so long as we can imagine a rational basis for the law, it's constitutional.  And he's right about that.

Justice Scalia is therefore also right--IMHO--that there is much to regret about the fact that in Romer, Lawrence and now Windsor, the Court has failed to specify the level of scrutiny it is applying as a matter of equal protection doctrine (in Romer and Windsor) or substantive due process doctrine (in Lawrence).  Putting aside the substantive due process issue, it would seem much more straightforward for the Court simply to say that laws drawing distinctions based on sexual orientation are subject to heightened scrutiny, either because sexual orientation distinctions simply are sex distinctions (and sex distinctions are already subject to heightened scrutiny) or because LGBT persons have been subject to a history of discrimination that continues to this day (albeit to a lesser extent than in the past).

If the Court were to rule that sexual orientation is a suspect or semi-suspect classification, then Justice Scalia's point would evaporate, because under heightened scrutiny, actual legislative motive does matter.  (See, e.g., Village of Arlington Heights v. MHDC).

Why is the Court unwilling to say whether sexual orientation discrimination triggers heightened scrutiny?  So far as I can tell, at some point in the 1980s, the Justices simply decided that they were done recognizing "new" suspect classifications and fundamental rights.  The result has been considerable confusion in the case law.  As a con law teacher, I have a difficult time explaining to my students how to integrate cases like Romer, Lawrence and non-gay-rights cases that apply "covert" heightened scrutiny into their outlines.

But that's a sideshow.  The real downside of the Court's refusal to "come out of the closet" and openly recognize new suspect classifications is that it allows Justice Scalia and his fellow travelers to make plausible-sounding criticisms of the Court's egalitarian rulings.