Friday, June 28, 2013

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 CNNSalon, 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.


Ian said...

I like the decision of Windsor but I do seem to have trouble following the logic.

It does seem that since the federal govt gives many, many benefits and rights to married couples they should logically be able to define that group - and the court did say that certain marriage definitions in the immigration context, for example, were permissible. But the court seems to be saying that the Feds don't have the ability to define marriage in the "traditional" way b/c the limiting to the traditional way was discriminatory. They punted the prop 8 case but doesn't Windsor essentially mean that SSM must eventually be recognized by the states? Is there anyway to read it (and not just assume a more conservative supreme court) and think that states will be allowed to treat same sex couples differently?

AF said...

"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 . . . "

Do you mean it's more straightforward as a matter of (pre)existing doctrine or as a matter of logic? I would yes to the former, no to the latter. You don't need tiers of scrutiny to think clearly about the constitutionality of discriminatory laws. Kennedy's gay rights decisions make it perfectly clear that he's not applying traditional rational basis scrutiny.

Ian said...

Would the court even need to create a new suspect class in this case? If I recall my con law, marriage is considered a fundamental rights and that would require strict scrutiny review.

Michael C. Dorf said...

In response to AF: I guess I mean a little of both. I agree that it's clear that Kennedy doesn't apply conventional RB scrutiny in these cases but the problem with not officially applying heightened scrutiny is that then in subsequent cases the Court can apply conventional RB scrutiny. You see that in the shift from Cleburne (which applies unconventional RB scrutiny to intellectual disability discrimination) to later cases (which deny that disability discrimination triggers any heightened scrutiny).

Michael C. Dorf said...

Ian is right that marriage is a fundamental right but the Court could say that it's only fundamental for straight couples. That move would be wrong in my view, but mostly because sex and sexual orientation are suspect/semi-suspect. To channel Justice Scalia, there isn't a fundamental right to polygamous marriage.

Paul Scott said...

"To channel Justice Scalia, there isn't a fundamental right to polygamous marriage."

And, apart from bias, do you think there is any rational basis for that? It seems the only reason we are prohibiting polygamy is to express moral disapproval.

Paul Scott said...

Question on departmentalism.

Why do you feel Justice Scalia's failure to give deference to the legislature or executive in other cases damages his case for departmentalism. It seems to me that a Justice could hold the view that, as to deciding cases and only when necessary, the judiciary must determine for itself the meaning of a constitutional provision and that it owes no deference to other branches on that issue.

Likewise, when legislating or executing, the other branches own no deference to the courts.

This may have an effect of making the SCOTUS the ultimate arbiter of constitutional meaning in most cases, but that would be just that, an effect in most cases.

If Congress and the President disagreed with the conclusion of the Court they could always enact a new law - even a clearly unconstitutional one by the Court's opinion - and that law would be law until such time as it was brought before a court - which in some cases may never happen.

I only read Justice Scalia in Windsor to be saying the job of the court to declare what the law is in cases does not mean that where there is otherwise no case that job remains. Which, as soon as you reject BLAG (which, as I read it is true of all but Alito), is what you have here.

David Ricardo said...

I think it is fair to say that in cases involving alleged discrimination that the Court has already said that there is a heightened scrutiny present. In fact it said just that a few days before the Windsor and Perry rulings in its decision involving the University of Texas and its admission policies which took race into account. The case was sent back to the lower court specifically for the lower court to engage in heightened scrutiny because the issue of discrimination was involved. That cases involving discrimination require heightened scrutiny is a settled issue, at least if one requires a modicum of consistency by the Court (although consistency is certainly not the hallmark of Justice Scalia).

Taking Perry and Windsor together a strong case can be made that the Court did find that banning SSM was unconstitutional, and even if some of the Court and some of the public does not understand or recognize this, I think Justice Scalia knows this, hence the tone of his dissent in Windsor. The logic for reaching such a conclusion is this.

1. There is no prima facie Constitutional right to same sex marriage, really, sorry folks there is not.


2. There is a specific right to Equal Protection in the Constitution.

3. This means, a la the trial result in Perry, that in order for a state to ban SSM it must have a demonstrable reason to do so other than animus towards a class of individuals, in this case the class being gay and lesbian couples.

4. As the trial process in Perry determined, there is no demonstrable reason to ban SSM except for animus and prejudice against a specific class of individuals.

5. Therefore if the state cannot show a reasonable/compelling reason to ban SSM, the concept of Equal Protection invalidates the law banning SSM.

In this way laws banning SSM can be overturned without ever ruling that SSM is a right guaranteed by the Constitution. Justice Scalia may be the only member of the Court who understands or believes that at this point.

What the Court should have done in Perry, and possibly in Windsor was adopt that logic, telling governmental units that yes, you can ban or refuse to recognize SSM, but you damn well better be able to demonstrate a basis to do so, just as the University of Texas was told that yes, you can take race into account in admissions but you better be able to show this is not unlawful discrimination and that it is the only way to achieve your objectives.

In California the defenders of Prop. 8 deserved to lose not because they didn’t have standing, but because they could not overcome this hurdle. In fact it is likely that no government can overcome this hurdle and that is what is likely driving the anger and resentment of Justice Scalia.

Shag from Brookline said...

As to 1), Justice "Scowlia" is apparently a tad "mugwompish" on horizontal (federal level) judicial supremacy.

In 2), regarding this:

"(It also gave the impression that he thought that the government could, consistent with the Constitution, ban masturbation, but let's not go there.)"

the late George Carlin had gone there, observing:: "Masturbation isn't against the law, and if it were, people would take the law into their own hands.

Piano said...

I found it particularly interesting that justice Alito, after ridiculing judge Walker for engaging in extra-judicial discourse during the Prop 8 trial, informs us of his own diagnosis on competing definition of marriage. ("Conjugal" v. "Consent-based")

I guess he couldn't contain himself and had to express his views on this matter, just like everyone else. I think that's unfortunate because had it not been for that philosophical engagement, his opinion would have been much cleaner and more persuasive.

Joe said...

From the oral argument:

MR. OLSON: Well, you've said -- you've said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you -- if a State prohibits polygamy, it's prohibiting conduct.

If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status.

A classification against a personal characteristic, particularly sex, is not the same thing as a classification based on number. Different or same sex or race, the "bilateral" function of marriage holds. The negative effects of polygamy, including shortage of partners and promotion of patriarchy is much more evident than the "negative" effects of same sex marriage. More complicated with more than two.

Limiting two to a squad car is different from not allowing blacks become police officers. Mere moral animus isn't the only thing against polygamy. It might not meet strict scrutiny, but bans on polygamy meet rational basis review and probably higher.

David S. Cohen said...

(For some reason I show up without a name - this is David Cohen)

On your last point, why do you think Kennedy persists in not only this fuzzy EPC analysis (and similar DPC analysis in Lawrence) but also in the face of 1) very clear and well argued briefs on the points and 2) very clear and incisive academic commentary about his lack of clarity over the past almost two decades? Is he just that opposed to the tiers of scrutiny? Then why not engage this discussion and just come out against them? In other words, why does he continue to make things so complicated in the face of really easy avenues to clear things up?

Michael C. Dorf said...

David: I think that on SDP, Justice Kennedy got a bit boxed in by having joined CJ Rehnquist's opinion in Webster, which moved away from the language of fundamental rights and towards "liberty" interests more generally. On EP, I just don't know.

Crispian said...

If Congress passed a law defining marriage for federal purposes based on whether the state of residence recognized the marriage, would that pass muster under Windsor?

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