UNITED STATES v. WINDSOR
The Defense of Marriage Act (DOMA), enacted in 1996, states that, for the purposes of federal law, the words “marriage” and “spouse” refer to legal unions between one man and one woman. Since that time, some states have authorized same-sex marriage. In other cases regarding the DOMA, federal courts have ruled it unconstitutional under the Fifth Amendment, but the courts have disagreed on the rationale.
Edith Windsor is the widow and sole executor of the estate of her late spouse, Thea Clara Spyer, who died in 2009. The two were married in Toronto, Canada, in 2007, and their marriage was recognized by New York state law. Thea Syper left her estate to her spouse, and because their marriage was not recognized by federal law, the government imposed $363,000 in taxes. Had their marriage been recognized, the estate would have qualified for a marital exemption, and no taxes would have been imposed.
On November 9, 2010 Windsor filed suit in district court seeking a declaration that the Defense of Marriage Act was unconstitutional. At the time the suit was filed, the government’s position was that DOMA must be defended. On February 23, 2011, the President and the Attorney General announced that they would not defend DOMA. On April 18, 2011, the Bipartisan Legal Advisory Group of the House of Representatives filed a petition to intervene in defense of DOMA and motioned to dismiss the case. The district court denied the motion, and later held that DOMA was unconstitutional. The U.S. Court of Appeals for the Second Circuit affirmed.
Does the executive branch’s agreement with the lower court that the act is unconstitutional deprive the Supreme Court of jurisdiction to decide the case?
Does the Bipartisan Legal Advisory Group of the House of Representatives have standing in the case?
Does the Defense of Marriage Act, which defines the term “marriage” under federal law as a “legal union between one man and one woman” deprive same-sex couples who are legally married under state laws of their Fifth Amendment rights to equal protection under federal law?
Legal provision: Fifth Amendment
Yes, unanswered, yes. Justice Anthony M. Kennedy delivered the opinion of the 5-4 majority. The Supreme Court held that the United States Government, despite the executive branch’s agreement regarding DOMA’s unconstitutionality, retains a significant enough stake in the issue to support Supreme Court’s jurisdiction. Because the judgment in question orders the U.S. Treasury to refund tax money, the Government stands to suffer a real economic injury and therefore maintains standing in the case. The Bipartisan Legal Advisory Group (BLAG) presented substantial arguments for the constitutionality of DOMA that reflected an actual controversy under Article III, which allowed the Supreme Court to address the case without needing to decide whether BLAG would have had standing before a lower court. The Court also held that states have the authority to define marital relationships and that DOMA goes against legislative and historical precedent by undermining that authority. The result is that DOMA denies same-sex couples the rights that come from federal recognition of marriage, which are available to other couples with legal marriages under state law. The Court held that the purpose and effect of DOMA is to impose a “disadvantage, a separate status, and so a stigma” on same-sex couples in violation of the Fifth Amendment’s guarantee of equal protection.
Chief Justice John G. Roberts wrote a dissent in which he argued that the Court lacked the jurisdiction to review the case and that interests in uniformity and stability justified Congress’ enactment of DOMA. He also argued that the majority’s opinion did not address the issue of state definitions of marriage affecting same-sex couples. In his separate dissent, Justice Antonin Scalia wrote that the Supreme Court had neither the jurisdiction to review the case nor the power to invalidate democratically enacted legislation. He argued that the majority’s opinion wrongly asserted the supremacy of the Supreme Court as the final arbiter of government. However, the majority opinion did not address the issue of whether or not the Equal Protection Clause required laws restricting the definition of marriage to be reviewed under a rational basis or strict scrutiny standard. He also argued that the majority misconstrued DOMA’s insidious intent and should not rule based on that presumption. Justice Clarence Thomas and Chief Justice Roberts joined in the dissent. Justice Samuel A. Alito, Jr. also wrote a separate dissent in which he argued that the United States Government did not have standing in the case because the executive branch declined to defend the statute, but that BLAG did have standing because it chose to defend the otherwise undefended statute. He also argued that the Constitution does not guarantee the right to enter into a same-sex marriage because that right is not “deeply rooted in this Nation’s history and tradition.” Instead, the issue of the definition of marriage is left to the people to decide, a decision in which DOMA does not interfere. Justice Clarence Thomas partially joined in the dissent.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
UNITED STATES, PETITIONER v. EDITH SCHLAIN WINDSOR, in her capacity as executor of the ESTATE OF THEA CLARA SPYER, et al.
on writ of certiorari to the united states court of appeals for the second circuit
[June 26, 2013]
Justice Kennedy delivered the opinion of the Court.
Two women then resident in New York were married in a lawful ceremony in Ontario, Canada, in 2007. Edith Windsor and Thea Spyer returned to their home in New York City. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the estate tax exemption for surviving spouses. She was barred from doing so, however, by a federal law, the Defense of Marriage Act, which excludes a same-sex partner from the definition of “spouse” as that term is used in federal statutes. Windsor paid the taxes but filed suit to challenge the constitutionality of this provision. The United States District Court and the Court of Appeals ruled that this portion of the statute is unconstitutional and ordered the United States to pay Windsor a refund. This Court granted certiorari and now affirms the judgment in Windsor’s favor.I
In 1996, as some States were beginning to consider the concept of same-sex marriage, see, e.g., Baehr v. Lewin, 74 Haw. 530, 852 P. 2d 44 (1993), and before any State had acted to permit it, Congress enacted the Defense of Marriage Act (DOMA), 110Stat. 2419. DOMA contains two operative sections: Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States. See 28 U. S. C. §1738C.
Section 3 is at issue here. It amends the Dictionary Act in Title 1, §7, of the United States Code to provide a federal definition of “marriage” and “spouse.” Section 3 of DOMA provides as follows:
“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 1 U. S. C. §7.
The definitional provision does not by its terms forbid States from enacting laws permitting same-sex marriages or civil unions or providing state benefits to residents in that status. The enactment’s comprehensive definition of marriage for purposes of all federal statutes and other regulations or directives covered by its terms, however, does control over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law. See GAO, D. Shah, Defense of Marriage Act: Update to Prior Report 1 (GAO–04–353R, 2004).
Edith Windsor and Thea Spyer met in New York City in 1963 and began a long-term relationship. Windsor and Spyer registered as domestic partners when New York City gave that right to same-sex couples in 1993. Concerned about Spyer’s health, the couple made the 2007 trip to Canada for their marriage, but they continued to reside in New York City. The State of New York deems their Ontario marriage to be a valid one. See 699 F. 3d 169, 177–178 (CA2 2012).
Spyer died in February 2009, and left her entire estate to Windsor. Because DOMA denies federal recognition to same-sex spouses, Windsor did not qualify for the marital exemption from the federal estate tax, which excludes from taxation “any interest in property which passes or has passed from the decedent to his surviving spouse.” 26 U. S. C. §2056(a). Windsor paid $363,053 in estate taxes and sought a refund. The Internal Revenue Service denied the refund, concluding that, under DOMA, Windsor was not a “surviving spouse.” Windsor commenced this refund suit in the United States District Court for the Southern District of New York. She contended that DOMA violates the guarantee of equal protection, as applied to the Federal Government through the Fifth Amendment.
While the tax refund suit was pending, the Attorney General of the United States notified the Speaker of the House of Representatives, pursuant to 28 U. S. C. §530D, that the Department of Justice would no longer defend the constitutionality of DOMA’s §3. Noting that “the Department has previously defended DOMA against . . . challenges involving legally married same-sex couples,” App. 184, the Attorney General informed Congress that “the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny.” Id., at 191. The Department of Justice has submitted many §530D letters over the years refusing to defend laws it deems unconstitutional, when, for instance, a federal court has rejected the Government’s defense of a statute and has issued a judgment against it. This case is unusual, however, because the §530D letter was not preceded by an adverse judgment. The letter instead reflected the Executive’s own conclusion, relying on a definition still being debated and considered in the courts, that heightened equal protection scrutiny should apply to laws that classify on the basis of sexual orientation.
Although “the President . . . instructed the Department not to defend the statute in Windsor,” he also decided “that Section 3 will continue to be enforced by the Executive Branch” and that the United States had an “interest in providing Congress a full and fair opportunity to participate in the litigation of those cases.” Id., at 191–193. The stated rationale for this dual-track procedure (determination of unconstitutionality coupled with ongoing enforcement) was to “recogniz[e] the judiciary as the final arbiter of the constitutional claims raised.” Id., at 192.
In response to the notice from the Attorney General, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives voted to intervene in the litigation to defend the constitutionality of §3 of DOMA. The Department of Justice did not oppose limited intervention by BLAG. The District Court denied BLAG’s motion to enter the suit as of right, on the rationale that the United States already was represented by the Department of Justice. The District Court, however, did grant intervention by BLAG as an interested party. See Fed. Rule Civ. Proc. 24(a)(2).
On the merits of the tax refund suit, the District Court ruled against the United States. It held that §3 of DOMA is unconstitutional and ordered the Treasury to refund the tax with interest. Both the Justice Department and BLAG filed notices of appeal, and the Solicitor General filed a petition for certiorari before judgment. Before this Court acted on the petition, the Court of Appeals for the Second Circuit affirmed the District Court’s judgment. It applied heightened scrutiny to classifications based on sexual orientation, as both the Department and Windsor had urged. The United States has not complied with the judgment. Windsor has not received her refund, and the Executive Branch continues to enforce §3 of DOMA.
In granting certiorari on the question of the constitutionality of §3 of DOMA, the Court requested argument on two additional questions: whether the United States’ agreement with Windsor’s legal position precludes further review and whether BLAG has standing to appeal the case. All parties agree that the Court has jurisdiction to decide this case; and, with the case in that framework, the Court appointed Professor Vicki Jackson as amicus curiae to argue the position that the Court lacks jurisdiction to hear the dispute. 568 U. S. ___ (2012). She has ably discharged her duties.
In an unrelated case, the United States Court of Appeals for the First Circuit has also held §3 of DOMA to be unconstitutional. A petition for certiorari has been filed in that case. Pet. for Cert. in Bipartisan Legal Advisory Group v. Gill, O. T. 2012, No. 12–13.II
It is appropriate to begin by addressing whether either the Government or BLAG, or both of them, were entitled to appeal to the Court of Appeals and later to seek certiorari and appear as parties here.
There is no dispute that when this case was in the District Court it presented a concrete disagreement between opposing parties, a dispute suitable for judicial resolution. “[A] taxpayer has standing to challenge the collection of a specific tax assessment as unconstitutional; being forced to pay such a tax causes a real and immediate economic injury to the individual taxpayer.” Hein v. Freedom From Religion Foundation, Inc., 551 U. S. 587, 599 (2007) (plurality opinion) (emphasis deleted). Windsor suffered a redressable injury when she was required to pay estate taxes from which, in her view, she was exempt but for the alleged invalidity of §3 of DOMA.
The decision of the Executive not to defend the constitutionality of §3 in court while continuing to deny refunds and to assess deficiencies does introduce a complication. Even though the Executive’s current position was announced before the District Court entered its judgment, the Government’s agreement with Windsor’s position would not have deprived the District Court of jurisdiction to entertain and resolve the refund suit; for her injury (failure to obtain a refund allegedly required by law) was concrete, persisting, and unredressed. The Government’s position—agreeing with Windsor’s legal contention but refusing to give it effect—meant that there was a justiciable controversy between the parties, despite what the claimant would find to be an inconsistency in that stance. Windsor, the Government, BLAG, and the amicus appear to agree upon that point. The disagreement is over the standing of the parties, or aspiring parties, to take an appeal in the Court of Appeals and to appear as parties in further proceedings in this Court.
The amicus’ position is that, given the Government’s concession that §3 is unconstitutional, once the District Court ordered the refund the case should have ended; and the amicus argues the Court of Appeals should have dismissed the appeal. The amicus submits that once the President agreed with Windsor’s legal position and the District Court issued its judgment, the parties were no longer adverse. From this standpoint the United States was a prevailing party below, just as Windsor was. Accordingly, the amicus reasons, it is inappropriate for this Court to grant certiorari and proceed to rule on the merits; for the United States seeks no redress from the judgment entered against it.
This position, however, elides the distinction between two principles: the jurisdictional requirements of Article III and the prudential limits on its exercise. See Warth v. Seldin, 422 U. S. 490, 498 (1975) . The latter are “essentially matters of judicial self-governance.” Id., at 500. The Court has kept these two strands separate: “Article III standing, which enforces the Constitution’s case-or-controversy requirement, see Lujan v. Defenders of Wildlife, 504 U. S. 555 –562 (1992); and prudential standing, which embodies ‘judicially self-imposed limits on the exercise of federal jurisdiction,’ Allen [v. Wright,] 468 U. S. [737,] 751 [(1984)].” Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1 –12 (2004).
The requirements of Article III standing are familiar:
“First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural or hypothetical.” ’ Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be ‘fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” Lujan, supra, at 560–561 (footnote and citations omitted).
Rules of prudential standing, by contrast, are more flexible “rule[s] . . . of federal appellate practice,” Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326, 333 (1980) , designed to protect the courts from “decid[ing] abstract questions of wide public significance even [when] other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.” Warth, supra, at 500.
In this case the United States retains a stake sufficient to support Article III jurisdiction on appeal and in proceedings before this Court. The judgment in question orders the United States to pay Windsor the refund she seeks. An order directing the Treasury to pay money is “a real and immediate economic injury,” Hein, 551 U. S., at 599, indeed as real and immediate as an order directing an individual to pay a tax. That the Executive may welcome this order to pay the refund if it is accompanied by the constitutional ruling it wants does not eliminate the injury to the national Treasury if payment is made, or to the taxpayer if it is not. The judgment orders the United States to pay money that it would not disburse but for the court’s order. The Government of the United States has a valid legal argument that it is injured even if the Executive disagrees with §3 of DOMA, which results in Windsor’s liability for the tax. Windsor’s ongoing claim for funds that the United States refuses to pay thus establishes a controversy sufficient for Article III jurisdiction. It would be a different case if the Executive had taken the further step of paying Windsor the refund to which she was entitled under the District Court’s ruling.
This Court confronted a comparable case in INS v. Chadha, 462 U. S. 919 (1983) . A statute by its terms allowed one House of Congress to order the Immigration and Naturalization Service (INS) to deport the respondent Chadha. There, as here, the Executive determined that the statute was unconstitutional, and “the INS presented the Executive’s views on the constitutionality of the House action to the Court of Appeals.” Id., at 930. The INS, however, continued to abide by the statute, and “the INS brief to the Court of Appeals did not alter the agency’s decision to comply with the House action ordering deportation of Chadha.” Ibid. This Court held “that the INS was sufficiently aggrieved by the Court of Appeals decision prohibiting it from taking action it would otherwise take,” ibid., regardless of whether the agency welcomed the judgment. The necessity of a “case or controversy” to satisfy Article III was defined as a requirement that the Court’s “ ‘decision will have real meaning: if we rule for Chadha, he will not be deported; if we uphold [the statute], the INS will execute its order and deport him.’ ” Id., at 939–940 (quoting Chadha v. INS, 634 F. 2d 408, 419 (CA9 1980)). This conclusion was not dictum. It was a necessary predicate to the Court’s holding that “prior to Congress’ intervention, there was adequate Art. III adverseness.” 462 U. S., at 939. The holdings of cases are instructive, and the words of Chadha make clear its holding that the refusal of the Executive to provide the relief sought suffices to preserve a justiciable dispute as required by Article III. In short, even where “the Government largely agree[s] with the opposing party on the merits of the controversy,” there is sufficient adverseness and an “adequate basis for jurisdiction in the fact that the Government intended to enforce the challenged law against that party.” Id., at 940, n. 12.
It is true that “[a] party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it.” Roper, supra, at 333, see also Camreta v. Greene, 563 U. S. ___, ___ (2011) (slip op., at 8) (“As a matter of practice and prudence, we have generally declined to consider cases at the request of a prevailing party, even when the Constitution allowed us to do so”). But this rule “does not have its source in the jurisdictional limitations of Art. III. In an appropriate case, appeal may be permitted . . . at the behest of the party who has prevailed on the merits, so long as that party retains a stake in the appeal satisfying the requirements of Art. III.” Roper, supra, at 333–334.
While these principles suffice to show that this case presents a justiciable controversy under Article III, the prudential problems inherent in the Executive’s unusual position require some further discussion. The Executive’s agreement with Windsor’s legal argument raises the risk that instead of a “ ‘real, earnest and vital controversy,’ ” the Court faces a “friendly, non-adversary, proceeding . . . [in which] ‘a party beaten in the legislature [seeks to] transfer to the courts an inquiry as to the constitutionality of the legislative act.’ ” Ashwander v. TVA, 297 U. S. 288, 346 (1936) (Brandeis, J., concurring) (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339, 345 (1892) ). Even when Article III permits the exercise of federal jurisdiction, prudential considerations demand that the Court insist upon “that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U. S. 186, 204 (1962) .
There are, of course, reasons to hear a case and issue a ruling even when one party is reluctant to prevail in its position. Unlike Article III requirements—which must be satisfied by the parties before judicial consideration is appropriate—the relevant prudential factors that counsel against hearing this case are subject to “countervailing considerations [that] may outweigh the concerns underlying the usual reluctance to exert judicial power.” Warth, 422 U. S., at 500–501. One consideration is the extent to which adversarial presentation of the issues is assured by the participation of amici curiae prepared to defend with vigor the constitutionality of the legislative act. With respect to this prudential aspect of standing as well, the Chadha Court encountered a similar situation. It noted that “there may be prudential, as opposed to Art. III, concerns about sanctioning the adjudication of [this case] in the absence of any participant supporting the validity of [the statute]. The Court of Appeals properly dispelled any such concerns by inviting and accepting briefs from both Houses of Congress.” 462 U. S., at 940. Chadha was not an anomaly in this respect. The Court adopts the practice of entertaining arguments made by an amicus when the Solicitor General confesses error with respect to a judgment below, even if the confession is in effect an admission that an Act of Congress is unconstitutional. See, e.g., Dickerson v. United States, 530 U. S. 428 (2000) .
In the case now before the Court the attorneys for BLAG present a substantial argument for the constitutionality of §3 of DOMA. BLAG’s sharp adversarial presentation of the issues satisfies the prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree. Were this Court to hold that prudential rules require it to dismiss the case, and, in consequence, that the Court of Appeals erred in failing to dismiss it as well, extensive litigation would ensue. The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA’s sweep involving over 1,000 federal statutes and a myriad of federal regulations. For instance, the opinion of the Court of Appeals for the First Circuit, addressing the validity of DOMA in a case involving regulations of the Department of Health and Human Services, likely would be vacated with instructions to dismiss, its ruling and guidance also then erased. See Massachusetts v. United States Dept. of Health and Human Servs., 682 F. 3d 1 (CA1 2012). Rights and privileges of hundreds of thousands of persons would be adversely affected, pending a case in which all prudential concerns about justiciability are absent. That numerical prediction may not be certain, but it is certain that the cost in judicial resources and expense of litigation for all persons adversely affected would be immense. True, the very extent of DOMA’s mandate means that at some point a case likely would arise without the prudential concerns raised here; but the costs, uncertainties, and alleged harm and injuries likely would continue for a time measured in years before the issue is resolved. In these unusual and urgent circumstances, the very term “prudential” counsels that it is a proper exercise of the Court’s responsibility to take jurisdiction. For these reasons, the prudential and Article III requirements are met here; and, as a consequence, the Court need not decide whether BLAG would have standing to challenge the District Court’s ruling and its affirmance in the Court of Appeals on BLAG’s own authority.
The Court’s conclusion that this petition may be heard on the merits does not imply that no difficulties would ensue if this were a common practice in ordinary cases. The Executive’s failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions has created a procedural dilemma. On the one hand, as noted, the Government’s agreement with Windsor raises questions about the propriety of entertaining a suit in which it seeks affirmance of an order invalidating a federal law and ordering the United States to pay money. On the other hand, if the Executive’s agreement with a plaintiff that a law is unconstitutional is enough to preclude judicial review, then the Supreme Court’s primary role in determining the constitutionality of a law that has inflicted real injury on a plaintiff who has brought a justiciable legal claim would become only secondary to the President’s. This would undermine the clear dictate of the separation-of-powers principle that “when an Act of Congress is alleged to conflict with the Constitution, ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’ ” Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (slip op., at 7) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). Similarly, with respect to the legislative power, when Congress has passed a statute and a President has signed it, it poses grave challenges to the separation of powers for the Executive at a particular moment to be able to nullify Congress’ enactment solely on its own initiative and without any determination from the Court.
The Court’s jurisdictional holding, it must be underscored, does not mean the arguments for dismissing this dispute on prudential grounds lack substance. Yet the difficulty the Executive faces should be acknowledged. When the Executive makes a principled determination that a statute is unconstitutional, it faces a difficult choice. Still, there is no suggestion here that it is appropriate for the Executive as a matter of course to challenge statutes in the judicial forum rather than making the case to Congress for their amendment or repeal. The integrity of the political process would be at risk if difficult constitutional issues were simply referred to the Court as a routine exercise. But this case is not routine. And the capable defense of the law by BLAG ensures that these prudential issues do not cloud the merits question, which is one of immediate importance to the Federal Government and to hundreds of thousands of persons. These circumstances support the Court’s decision to proceed to the merits.III
When at first Windsor and Spyer longed to marry, neither New York nor any other State granted them that right. After waiting some years, in 2007 they traveled to Ontario to be married there. It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight. Accordingly some States concluded that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other. The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion.
Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community. And so New York recognized same-sex marriages performed elsewhere; and then it later amended its own marriage laws to permit same-sex marriage. New York, in common with, as of this writing, 11 other States and the District of Columbia, decided that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons. After a statewide deliberative process that enabled its citizens to discuss and weigh arguments for and against samesex marriage, New York acted to enlarge the definition of marriage to correct what its citizens and elected representatives perceived to be an injustice that they had not earlier known or understood. See Marriage Equality Act, 2011 N. Y. Laws 749 (codified at N. Y. Dom. Rel. Law Ann. §§10–a, 10–b, 13 (West 2013)).
Against this background of lawful same-sex marriage in some States, the design, purpose, and effect of DOMA should be considered as the beginning point in deciding whether it is valid under the Constitution. By history and tradition the definition and regulation of marriage, as will be discussed in more detail, has been treated as being within the authority and realm of the separate States. Yet it is further established that Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges. Just this Term the Court upheld the authority of the Congress to pre-empt state laws, allowing a former spouse to retain life insurance proceeds under a federal program that gave her priority, because of formal beneficiary designation rules, over the wife by a second marriage who survived the husband. Hillman v. Maretta, 569 U. S. ___ (2013); see also Ridgway v. Ridgway, 454 U. S. 46 (1981) ; Wissner v. Wissner, 338 U. S. 655 (1950) . This is one example of the general principle that when the Federal Government acts in the exercise of its own proper authority, it has a wide choice of the mechanisms and means to adopt. See McCulloch v. Maryland, 4 Wheat. 316, 421 (1819). Congress has the power both to ensure efficiency in the administration of its programs and to choose what larger goals and policies to pursue.
Other precedents involving congressional statutes which affect marriages and family status further illustrate this point. In addressing the interaction of state domestic relations and federal immigration law Congress determined that marriages “entered into for the purpose of procuring an alien’s admission [to the United States] as an immigrant” will not qualify the noncitizen for that status, even if the noncitizen’s marriage is valid and proper for state-law purposes. 8 U. S. C. §1186a(b)(1) (2006 ed. and Supp. V). And in establishing income-based criteria for Social Security benefits, Congress decided that although state law would determine in general who qualifies as an applicant’s spouse, common-law marriages also should be recognized, regardless of any particular State’s view on these relationships. 42 U. S. C. §1382c(d)(2).
Though these discrete examples establish the constitutionality of limited federal laws that regulate the meaning of marriage in order to further federal policy, DOMA has a far greater reach; for it enacts a directive applicable to over 1,000 federal statutes and the whole realm of federal regulations. And its operation is directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003); An Act Implementing the Guarantee of Equal Protection Under the Constitution of the State for Same Sex Couples, 2009 Conn. Pub. Acts no. 09–13; Varnum v. Brien, 763 N. W. 2d 862 (Iowa 2009); Vt. Stat. Ann., Tit. 15, §8 (2010); N. H. Rev. Stat. Ann. §457:1–a (West Supp. 2012); Religious Freedom and Civil Marriage Equality Amendment Act of 2009, 57 D. C. Reg. 27 (Dec. 18, 2009); N. Y. Dom. Rel. Law Ann. §10–a (West Supp. 2013); Wash. Rev. Code §26.04.010 (2012); Citizen Initiative, SameSex Marriage, Question 1 (Me. 2012) (results online at http: / / w w w.maine.gov/sos/cec/elec/2012/tab - ref-2012.html (all Internet sources as visited June 18, 2013, and available in Clerk of Court’s case file)); Md. Fam. Law Code Ann. §2–201 (Lexis 2012); An Act to Amend Title 13 of the Delaware Code Relating to Domestic Relations to Provide for Same-Gender Civil Marriage and to Convert Existing Civil Unions to Civil Marriages, 79 Del. Laws ch. 19 (2013); An act relating to marriage; providing for civil marriage between two persons; providing for exemptions and protections based on religious association, 2013 Minn. Laws ch. 74; An Act Relating to Domestic Relations—Persons Eligible to Marry, 2013 R. I. Laws ch. 4.
In order to assess the validity of that intervention it is necessary to discuss the extent of the state power and authority over marriage as a matter of history and tradition. State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U. S. 1 (1967) ; but, subject to those guarantees, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U. S. 393, 404 (1975) .
The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. See Williams v. North Carolina, 317 U. S. 287, 298 (1942) (“Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders”). The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the “[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.” Ibid. “[T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce . . . [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.” Haddock v. Haddock, 201 U. S. 562, 575 (1906) ; see also In re Burrus, 136 U. S. 586 –594 (1890) (“The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States”).
Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations. In De Sylva v. Ballentine, 351 U. S. 570 (1956) , for example, the Court held that, “[t]o decide who is the widow or widower of a deceased author, or who are his executors or next of kin,” under the Copyright Act “requires a reference to the law of the State which created those legal relationships” because “there is no federal law of domestic relations.” Id., at 580. In order to respect this principle, the federal courts, as a general rule, do not adjudicate issues of marital status even when there might otherwise be a basis for federal jurisdiction. See Ankenbrandt v. Richards, 504 U. S. 689, 703 (1992) . Federal courts will not hear divorce and custody cases even if they arise in diversity because of “the virtually exclusive primacy . . . of the States in the regulation of domestic relations.” Id., at 714 (Blackmun, J., concurring in judgment).
The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States.” Ohio ex rel. Popovici v. Agler, 280 U. S. 379 –384 (1930). Marriage laws vary in some respects from State to State. For example, the required minimum age is 16 in Vermont, but only 13 in New Hampshire. Compare Vt. Stat. Ann., Tit. 18, §5142 (2012), with N. H. Rev. Stat. Ann. §457:4 (West Supp. 2012). Likewise the permissible degree of consanguinity can vary (most States permit first cousins to marry, but a handful—such as Iowa and Washington, see Iowa Code §595.19 (2009); Wash. Rev. Code §26.04.020 (2012)—prohibit the practice). But these rules are in every event consistent within each State.
Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. “ ‘[D]is-criminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’ ” Romer v. Evans, 517 U. S. 620, 633 (1996) (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U. S. 32 –38 (1928)).
The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.
In acting first to recognize and then to allow same-sex marriages, New York was responding “to the initiative of those who [sought] a voice in shaping the destiny of their own times.” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 9). These actions were without doubt a proper exercise of its sovereign authority within our federal system, all in the way that the Framers of the Constitu-tion intended. The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other.
The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits. Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form “but one element in a personal bond that is more enduring.” Lawrence v. Texas, 539 U. S. 558, 567 (2003) . By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.IV
DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954) . The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528 –535 (1973). In determining whether a law is motived by an improper animus or purpose, “ ‘[d]iscriminations of an unusual character’ ” especially require careful consideration. Supra, at 19 (quoting Romer, supra, at 633). DOMA cannot survive under these principles. The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.
The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. The House Report announced its conclusion that “it is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage. . . . H. R. 3396 is appropriately entitled the ‘Defense of Marriage Act.’ The effort to redefine ‘marriage’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage.” H. R. Rep. No. 104–664, pp. 12–13 (1996). The House concluded that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” Id., at 16 (footnote deleted). The stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.” Ibid. Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of Marriage.
The arguments put forward by BLAG are just as candid about the congressional purpose to influence or interfere with state sovereign choices about who may be married. As the title and dynamics of the bill indicate, its purpose is to discourage enactment of state same-sex marriage laws and to restrict the freedom and choice of couples married under those laws if they are enacted. The congressional goal was “to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.” Massachusetts, 682 F. 3d, at 12–13. The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law. This raises a most serious question under the Constitution’s Fifth Amendment.
DOMA’s operation in practice confirms this purpose. When New York adopted a law to permit same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective through a system-wide enactment with no identified connection to any particular area of federal law. DOMA writes inequality into the entire United States Code. The particular case at hand concerns the estate tax, but DOMA is more than a simple determination of what should or should not be allowed as an estate tax refund. Among the over 1,000 statutes and numerous federal regulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans’ benefits.
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. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558 , and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive. See 5 U. S. C. §§8901(5), 8905. It deprives them of the Bankruptcy Code’s special protections for domestic-support obligations. See 11 U. S. C. §§101(14A), 507(a)(1)(A), 523(a)(5), 523(a)(15). It forces them to follow a complicated procedure to file their state and federal taxes jointly. Technical Bulletin TB–55, 2010 Vt. Tax LEXIS 6 (Oct. 7, 2010); Brief for Federalism Scholars as Amici Curiae 34. It prohibits them from being buried together in veterans’ cemeteries. National Cemetery Administration Directive 3210/1, p. 37 (June 4, 2008).
For certain married couples, DOMA’s unequal effects are even more serious. The federal penal code makes it a crime to “assaul[t], kidna[p], or murde[r] . . . a member of the immediate family” of “a United States official, a United States judge, [or] a Federal law enforcement officer,” 18 U. S. C. §115(a)(1)(A), with the intent to influence or retaliate against that official, §115(a)(1). Although a “spouse” qualifies as a member of the officer’s “immediate family,” §115(c)(2), DOMA makes this protection inapplicable to same-sex spouses.
DOMA also brings financial harm to children of same-sex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses. See 26 U. S. C. §106; Treas. Reg. §1.106–1, 26 CFR §1.106–1 (2012); IRS Private Letter Ruling 9850011 (Sept. 10, 1998). And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security. See Social Security Administration, Social Security Survivors Benefits 5 (2012) (benefits available to a surviving spouse caring for the couple’s child), online at http://www.ssa.gov/pubs/EN-05-10084.pdf.
DOMA divests married same-sex couples of the duties and responsibilities that are an essential part of married life and that they in most cases would be honored to accept were DOMA not in force. For instance, because it is expected that spouses will support each other as they pursue educational opportunities, federal law takes into consideration a spouse’s income in calculating a student’s federal financial aid eligibility. See 20 U. S. C. §1087nn(b). Same-sex married couples are exempt from this requirement. The same is true with respect to federal ethics rules. Federal executive and agency officials are prohibited from “participat[ing] personally and substantially” in matters as to which they or their spouses have a financial interest. 18 U. S. C. §208(a). A similar statute prohibits Senators, Senate employees, and their spouses from accepting high-value gifts from certain sources, see 2 U. S. C. §31–2(a)(1), and another mandates detailed financial disclosures by numerous high-ranking officials and their spouses. See 5 U. S. C. App. §§102(a), (e). Under DOMA, however, these Government-integrity rules do not apply to same-sex spouses.* * *
The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.
What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.
The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. See Bolling, 347 U. S., at 499–500; Adarand Constructors, Inc. v. Peña, 515 U. S. 200 –218 (1995). While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.
The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. 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 opinion and its holding are confined to those lawful marriages.
The judgment of the Court of Appeals for the Second Circuit is affirmed.
It is so ordered.
SUPREME COURT OF THE UNITED STATES
UNITED STATES, PETITIONER v. EDITH SCHLAIN WINDSOR, in her capacity as executor of the ESTATE OF THEA CLARA SPYER, et al.
on writ of certiorari to the united states court of appeals for the second circuit
[June 26, 2013]
Justice Alito, with whom Justice Thomas joins as to Parts II and III, dissenting.
Our Nation is engaged in a heated debate about same-sex marriage. That debate is, at bottom, about the nature of the institution of marriage. Respondent Edith Windsor, supported by the United States, asks this Court to intervene in that debate, and although she couches her argument in different terms, what she seeks is a holding that enshrines in the Constitution a particular understanding of marriage under which the sex of the partners makes no difference. The Constitution, however, does not dictate that choice. It leaves the choice to the people, acting through their elected representatives at both the federal and state levels. I would therefore hold that Congress did not violate Windsor’s constitutional rights by enacting §3 of the Defense of Marriage Act (DOMA), 110Stat. 2419, which defines the meaning of marriage under federal statutes that either confer upon married persons certain federal benefits or impose upon them certain federal obligations.I
I turn first to the question of standing. In my view, the
United States clearly is not a proper petitioner in this case. The United States does not ask us to overturn the judgment of the court below or to alter that judgment in any way. Quite to the contrary, the United States argues emphatically in favor of the correctness of that judgment. We have never before reviewed a decision at the sole behest of a party that took such a position, and to do so would be to render an advisory opinion, in violation of Article III’s dictates. For the reasons given in Justice Scalia’s dissent, I do not find the Court’s arguments to the contrary to be persuasive.
Whether the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) has standing to petition is a much more difficult question. It is also a significantly closer question than whether the intervenors in Hollingsworth v. Perry, ante, p. ___ —which the Court also decides today—have standing to appeal. It is remarkable that the Court has simultaneously decided that the United States, which “receive[d] all that [it] ha[d] sought” below, Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326, 333 (1980) , is a proper petitioner in this case but that the intervenors in Hollingsworth, who represent the party that lost in the lower court, are not. In my view, both the Hollingsworth intervenors and BLAG have standing. 1
A party invoking the Court’s authority has a sufficient stake to permit it to appeal when it has “ ‘suffered an injury in fact’ that is caused by ‘the conduct complained of’ and that ‘will be redressed by a favorable decision.’ ” Camreta v. Greene, 563 U. S. ___, ___ (2011) (slip op., at 5) (quoting Lujan v. Defenders of Wildlife, 504 U. S. 555 –561 (1992)). In the present case, the House of Representatives, which has authorized BLAG to represent its interests in this matter, 2 suffered just such an injury.
In INS v. Chadha, 462 U. S. 919 (1983) , the Court held that the two Houses of Congress were “proper parties” to file a petition in defense of the constitutionality of the one-house veto statute, id., at 930, n. 5 (internal quotation marks omitted). Accordingly, the Court granted and decided petitions by both the Senate and the House, in addition to the Executive’s petition. Id., at 919, n. *. That the two Houses had standing to petition is not surprising: The Court of Appeals’ decision in Chadha, by holding the one-house veto to be unconstitutional, had limited Congress’ power to legislate. In discussing Article III standing, the Court suggested that Congress suffered a similar injury whenever federal legislation it had passed was struck down, noting that it had “long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional.” Id., at 940.
The United States attempts to distinguish Chadha on the ground that it “involved an unusual statute that vested the House and the Senate themselves each with special procedural rights—namely, the right effectively to veto Executive action.” Brief for United States (jurisdiction) 36. But that is a distinction without a difference: just as the Court of Appeals decision that the Chadha Court affirmed impaired Congress’ power by striking down the one-house veto, so the Second Circuit’s decision here impairs Congress’ legislative power by striking down an Act of Congress. The United States has not explained why the fact that the impairment at issue in Chadha was “special” or “procedural” has any relevance to whether Congress suffered an injury. Indeed, because legislating is Congress’ central function, any impairment of that function is a more grievous injury than the impairment of a procedural add-on.
The Court’s decision in Coleman v. Miller, 307 U. S. 433 (1939) , bolsters this conclusion. In Coleman, we held that a group of state senators had standing to challenge a lower court decision approving the procedures used to ratify an amendment to the Federal Constitution. We reasoned that the senators’ votes—which would otherwise have carried the day—were nullified by that action. See id., at 438 (“Here, the plaintiffs include twenty senators, whose votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes”); id., at 446 (“[W]e find no departure from principle in recognizing in the instant case that at least the twenty senators whose votes, if their contention were sustained, would have been sufficient to defeat the resolution ratifying the proposed constitutional amendment, have an interest in the controversy which, treated by the state court as a basis for entertaining and deciding the federal questions, is sufficient to give the Court jurisdiction to review that decision”). By striking down §3 of DOMA as unconstitutional, the Second Circuit effectively “held for naught” an Act of Congress. Just as the state-senator-petitioners in Coleman were necessary parties to the amendment’s ratification, the House of Representatives was a necessary party to DOMA’s passage; indeed, the House’s vote would have been sufficient to prevent DOMA’s repeal if the Court had not chosen to execute that repeal judicially.
Both the United States and the Court-appointed amicus err in arguing that Raines v. Byrd, 521 U. S. 811 (1997) , is to the contrary. In that case, the Court held that Members of Congress who had voted “nay” to the Line Item Veto Act did not have standing to challenge that statute in federal court. Raines is inapposite for two reasons. First, Raines dealt with individual Members of Congress and specifically pointed to the individual Members’ lack of institutional endorsement as a sign of their standing problem: “We attach some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit.” Id., at 829; see also ibid., n. 10 (citing cases to the effect that “members of collegial bodies do not have standing to perfect an appeal the body itself has declined to take” (internal quotation marks omitted)).
Second, the Members in Raines—unlike the state senators in Coleman—were not the pivotal figures whose votes would have caused the Act to fail absent some challenged action. Indeed, it is telling that Raines characterized Coleman as standing “for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” 521 U. S., at 823. Here, by contrast, passage by the House was needed for DOMA to become law. U. S. Const., Art. I, §7 (bicameralism and presentment requirements for legislation).
I appreciate the argument that the Constitution confers on the President alone the authority to defend federal law in litigation, but in my view, as I have explained, that argument is contrary to the Court’s holding in Chadha, and it is certainly contrary to the Chadha Court’s endorsement of the principle that “Congress is the proper party to defend the validity of a statute” when the Executive refuses to do so on constitutional grounds. 462 U. S., at 940. See also 2 U. S. C. §288h(7) (Senate Legal Counsel shall defend the constitutionality of Acts of Congress when placed in issue). 3 Accordingly, in the narrow category of cases in which a court strikes down an Act of Congress and the Executive declines to defend the Act, Congress both has standing to defend the undefended statute and is a proper party to do so.II
Windsor and the United States argue that §3 of DOMA violates the equal protection principles that the Court has found in the Fifth Amendment’s Due Process Clause. See Brief for Respondent Windsor (merits) 17–62; Brief for United States (merits) 16–54; cf. Bolling v. Sharpe, 347 U. S. 497 (1954) . The Court rests its holding on related arguments. See ante, at 24–25.
Same-sex marriage presents a highly emotional and important question of public policy—but not a difficult question of constitutional law. The Constitution does not
guarantee the right to enter into a same-sex marriage. Indeed, no provision of the Constitution speaks to the issue.
The Court has sometimes found the Due Process Clauses to have a substantive component that guarantees liberties beyond the absence of physical restraint. And the Court’s holding that “DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,” ante, at 25, suggests that substantive due process may partially underlie the Court’s decision today. But it is well established that any “substantive” component to the Due Process Clause protects only “those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ ” Washington v. Glucksberg, 521 U. S. 702 –721 (1997); Snyder v. Massachusetts, 291 U. S. 97, 105 (1934) (referring to fundamental rights as those that are so “rooted in the traditions and conscience of our people as to be ranked as fundamental”), as well as “ ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’ ” Glucksberg, supra, at 721 (quoting Palko v. Connecticut, 302 U. S. 319 –326 (1937)).
It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation’s history and tradition. In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941. Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000. 4
What Windsor and the United States seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. Faced with such a request, judges have cause for both caution and humility.
The family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. Past changes in the understanding of marriage—for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage—have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time.
We can expect something similar to take place if same-sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come. 5 There are those who think that allowing same-sex marriage will seriously undermine the institution of marriage. See, e.g., S. Girgis, R. Anderson, & R. George, What is Marriage? Man and Woman: A Defense 53–58 (2012); Finnis, Marriage: A Basic and Exigent Good, 91 The Monist 388, 398
(2008). 6 Others think that recognition of same-sex marriage will fortify a now-shaky institution. See, e.g., A. Sullivan, Virtually Normal: An Argument About Homosexuality 202–203 (1996); J. Rauch, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America 94 (2004).
At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are
certainly not equipped to make such an assessment. The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.III
Perhaps because they cannot show that same-sex marriage is a fundamental right under our Constitution, Windsor and the United States couch their arguments in equal protection terms. They argue that §3 of DOMA discriminates on the basis of sexual orientation, that classifications based on sexual orientation should trigger a form of “heightened” scrutiny, and that §3 cannot survive such scrutiny. They further maintain that the governmental interests that §3 purports to serve are not sufficiently important and that it has not been adequately shown that §3 serves those interests very well. The Court’s holding, too, seems to rest on “the equal protection guarantee of the Fourteenth Amendment,” ante, at 25—although the Court is careful not to adopt most of Windsor’s and the United States’ argument.
In my view, the approach that Windsor and the United States advocate is misguided. Our equal protection framework, upon which Windsor and the United States rely, is a judicial construct that provides a useful mechanism for analyzing a certain universe of equal protection cases. But that framework is ill suited for use in evaluating the constitutionality of laws based on the traditional understanding of marriage, which fundamentally turn on what marriage is.
Underlying our equal protection jurisprudence is the central notion that “[a] classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ ” Reed v. Reed, 404 U. S. 71, 76 (1971) (quoting F. S. Royter Guano Co. v. Virginia, 253 U. S. 412, 415 (1920) ). The modern tiers of scrutiny—on which Windsor and the United States rely so heavily—are a heuristic to help judges determine when classifications have that “fair and substantial relation to the object of the legislation.” Reed, supra, at 76.
So, for example, those classifications subject to strict scrutiny—i.e., classifications that must be “narrowly tailored” to achieve a “compelling” government interest, Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 720 (2007) (internal quotation marks omitted)—are those that are “so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy.” Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 440 (1985) ; cf. id., at 452–453 (Stevens, J., concurring) (“It would be utterly irrational to limit the franchise on the basis of height or weight; it is equally invalid to limit it on the basis of skin color. None of these attributes has any bearing at all on the citizen’s willingness or ability to exercise that civil right”).
In contrast, those characteristics subject to so-called intermediate scrutiny—i.e., those classifications that must be “ ‘substantially related’ ” to the achievement of “important governmental objective[s],” United States v. Virginia, 518 U. S. 515, 524 (1996) ; id., at 567 (Scalia, J., dissenting)—are those that are sometimes relevant considerations to be taken into account by legislators, but “generally provid[e] no sensible ground for different treatment,” Cleburne, supra, at 440. For example, the Court has held that statutory rape laws that criminalize sexual intercourse with a woman under the age of 18 years, but place no similar liability on partners of underage men, are grounded in the very real distinction that “young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse.” Michael M. v. Superior Court, Sonoma Cty., 450 U. S. 464, 471 (1981) (plurality opnion). The plurality reasoned that “[o]nly women may become pregnant, and they suffer disproportionately the profound physical, emotional, and psychological consequences of sexual activity.” Ibid. In other contexts, however, the Court has found that classifications based on gender are “arbitrary,” Reed, supra, at 76, and based on “outmoded notions of the relative capabilities of men and women,” Cleburne, supra, at 441, as when a State provides that a man must always be preferred to an equally qualified woman when both seek to administer the estate of a deceased party, see Reed, supra, at 76–77.
Finally, so-called rational-basis review applies to classifications based on “distinguishing characteristics relevant to interests the State has the authority to implement.” Cleburne, supra, at 441. We have long recognized that “the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantages to various groups or persons.” Romer v. Evans, 517 U. S. 620, 631 (1996) . As a result, in rational-basis cases, where the court does not view the classification at issue as “inherently suspect,” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 218 (1995) (internal quotation marks omitted), “the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.” Cleburne, supra, at 441–442.
In asking the Court to determine that §3 of DOMA is subject to and violates heightened scrutiny, Windsor and the United States thus ask us to rule that the presence of two members of the opposite sex is as rationally related to marriage as white skin is to voting or a Y-chromosome is to the ability to administer an estate. That is a striking request and one that unelected judges should pause before granting. Acceptance of the argument would cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools.
By asking the Court to strike down DOMA as not satisfying some form of heightened scrutiny, Windsor and the United States are really seeking to have the Court resolve a debate between two competing views of marriage.
The first and older view, which I will call the “traditional” or “conjugal” view, sees marriage as an intrinsically opposite-sex institution. BLAG notes that virtually every culture, including many not influenced by the Abrahamic religions, has limited marriage to people of the opposite sex. Brief for Respondent BLAG (merits) 2 (citing Hernandez v. Robles, 7 N. Y. 3d 338, 361, 855 N. E. 2d 1, 8 (2006) (“Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex”)). And BLAG attempts to explain this phenomenon by arguing that the institution of marriage was created for the purpose of channeling heterosexual intercourse into a structure that supports child rearing. Brief for Respondent BLAG 44–46, 49. Others explain the basis for the institution in more philosophical terms. They argue that marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so. See, e.g., Girgis, Anderson, & George, What is Marriage? Man and Woman: A Defense, at 23–28. While modern cultural changes have weakened the link between marriage and procreation in the popular mind, there is no doubt that, throughout human history and across many cultures, marriage has been viewed as an exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship.
The other, newer view is what I will call the “consent-based” vision of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons. At least as it applies to heterosexual couples, this view of marriage now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage. Proponents of same-sex marriage argue that because gender differentiation is not relevant to this vision, the exclusion of same-sex couples from the institution of marriage is rank discrimination.
The Constitution does not codify either of these views of marriage (although I suspect it would have been hard at the time of the adoption of the Constitution or the Fifth Amendment to find Americans who did not take the traditional view for granted). The silence of the Constitution on this question should be enough to end the matter as far as the judiciary is concerned. Yet, Windsor and the United States implicitly ask us to endorse the consent-based view of marriage and to reject the traditional view, thereby arrogating to ourselves the power to decide a question that philosophers, historians, social scientists, and theologians are better qualified to explore. 7 Because our constitutional order assigns the resolution of questions of this nature to the people, I would not presume to enshrine either vision of marriage in our constitutional jurisprudence.
Legislatures, however, have little choice but to decide between the two views. We have long made clear that neither the political branches of the Federal Government nor state governments are required to be neutral between competing visions of the good, provided that the vision of the good that they adopt is not countermanded by the Constitution. See, e.g., Rust v. Sullivan, 500 U. S. 173, 192 (1991) (“[T]he government ‘may make a value judgment favoring childbirth over abortion’ ” (quoting Maher v. Rue, 432 U. S. 464, 474 (1977) )). Accordingly, both Congress and the States are entitled to enact laws recognizing either of the two understandings of marriage. And given the size of government and the degree to which it now regulates daily life, it seems unlikely that either Congress or the States could maintain complete neutrality even if they tried assiduously to do so.
Rather than fully embracing the arguments made by Windsor and the United States, the Court strikes down §3 of DOMA as a classification not properly supported by its objectives. The Court reaches this conclusion in part because it believes that §3 encroaches upon the States’ sovereign prerogative to define marriage. See ante, at 21–22 (“As the title and dynamics of the bill indicate, its purpose is to discourage enactment of state same-sex marriage laws and to restrict the freedom and choice of couples married under those laws if they are enacted. The congressional goal was ‘to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws’ ” (quoting Massachusetts v. United States Dept. of Health and Human Servs., 682 F. 3d 1, 12–13 (CA1 2012))). Indeed, the Court’s ultimate conclusion is that DOMA falls afoul of the Fifth Amendment because it “singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty” and “imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper.” Ante, at 25 (emphasis added).
To the extent that the Court takes the position that the question of same-sex marriage should be resolved primarily at the state level, I wholeheartedly agree. I hope that the Court will ultimately permit the people of each State to decide this question for themselves. Unless the Court is willing to allow this to occur, the whiffs of federalism in the today’s opinion of the Court will soon be scattered to the wind.
In any event, §3 of DOMA, in my view, does not encroach on the prerogatives of the States, assuming of course that the many federal statutes affected by DOMA have not already done so. Section 3 does not prevent any State from recognizing same-sex marriage or from extending to same-sex couples any right, privilege, benefit, or obligation stemming from state law. All that §3 does is to define a class of persons to whom federal law extends certain special benefits and upon whom federal law imposes certain special burdens. In these provisions, Congress used marital status as a way of defining this class—in part, I assume, because it viewed marriage as a valuable institution to be fostered and in part because it viewed married couples as comprising a unique type of economic unit that merits special regulatory treatment. Assuming that Congress has the power under the Constitution to enact the laws affected by §3, Congress has the power to define the category of persons to whom those laws apply.* * *
For these reasons, I would hold that §3 of DOMA does not violate the Fifth Amendment. I respectfully dissent.
1 Our precedents make clear that, in order to support our jurisdic-tion, BLAG must demonstrate that it had Article III standing in its own right, quite apart from its status as an intervenor. See Diamond v. Charles, 476 U. S. 54, 68 (1986) (“Although intervenors are considered parties entitled, among other things, to seek review by this Court, an intervenor’s right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III” (citation omitted)); Arizonans for Official English v. Arizona, 520 U. S. 43, 64 (1997) (“Standing to defend on appeal in the place of an original defendant, no less than standing to sue, demands that the litigant possess a direct stake in the outcome” (internal quotation marks omitted)); id.,at 65 (“An intervenor cannot step into the shoes of the original party unless the intervenor independently fulfills the requirements of Article III” (internal quotation marks omitted)).
2 H. Res. 5, 113th Cong., 1st Sess., §4(a)(1)(B) (2013) (“[BLAG] continues to speak for, and articulates the institutional position of, the House in all litigation matters in which it appears, including in Windsor v. United States”).
3 Buckley v. Valeo, 424 U. S. 1 (1976) , is not to the contrary. The Court’s statements there concerned enforcement, not defense.
4 Curry-Sumner, A Patchwork of Partnerships: Comparative Overview of Registration Schemes in Europe, in Legal Recognition of Same-Sex Partnerships 71, 72 (K. Boele-Woelki & A. Fuchs eds., rev. 2d ed., 2012).
5 As sociologists have documented, it sometimes takes decades to doc-ument the effects of social changes—like the sharp rise in divorcerates following the advent of no-fault divorce—on children and society. See generally J. Wallerstein, J. Lewis, & S. Blakeslee, The Unexpected Legacy of Divorce: The 25 Year Landmark Study (2000).
6 Among those holding that position, some deplore and some applaud this predicted development. Compare, e.g., Wardle, “Multiply and Replenish”: Considering Same-Sex Marriage in Light of State Interests in Marital Procreation, 24 Harv. J. L. & Pub. Pol’y 771, 799 (2001) (“Culturally, the legalization of same-sex marriage would send a mes-sage that would undermine the social boundaries relating to mar-riage and family relations. The confusion of social roles linked with marriage and parenting would be tremendous, and the message of ‘anything goes’ in the way of sexual behavior, procreation, and parenthood would wreak its greatest havoc among groups of vulnerable individuals who most need the encouragement of bright line lawsand clear social mores concerning procreative responsibility”) and Gal-lagher, (How) Will Gay Marriage Weaken Marriage as a Social Institution: A Reply to Andrew Koppelman, 2 U. St. Thomas L. J. 33, 58 (2005) (“If the idea of marriage really does matter—if society really does need a social institution that manages opposite-sex attractions in the interests of children and society—then taking an already weakened social institution, subjecting it to radical new redefinitions, and hoping that there are no consequences is probably neither a wise nor a compassionate idea”), with Brownworth, Something Borrowed, Something Blue: Is Marriage Right for Queers? in I Do/I Don’t: Queers on Marriage 53, 58–59 (G. Wharton & I. Phillips eds. 2004) (Former President George W. “Bush is correct . . . when he states that allowing same-sex couples to marry will weaken the institution of marriage. It most certainly will do so, and that will make marriage a far better concept than it previously has been”) and Willis, Can Marriage Be Saved? A Forum, The Nation, p. 16 (2004) (celebrating the fact that “conferring the legitimacy of marriage on homosexual relations will introduce an implicit revolt against the institution into its very heart”).
7 The degree to which this question is intractable to typical judicial processes of decisionmaking was highlighted by the trial in Hollingsworth v. Perry, ante, p. ___. In that case, the trial judge, after receiving testimony from some expert witnesses, purported to make “findings of fact” on such questions as why marriage came to be, Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 958 (ND Cal. 2010) (finding of fact no. 27) (“Marriage between a man and a woman was traditionally organized based on presumptions of division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family”), what marriage is, id., at 961 (finding of fact no. 34) (“Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents”), and the effect legalizing same-sex marriage would have on opposite-sex marriage, id., at 972 (finding of fact no. 55) (“Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”). At times, the trial reached the heights of parody, as when the trial judge questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify in person in his courtroom. See 13 Tr. in No. C 09–2292 VRW (ND Cal.), pp. 3038–3039. And, if this spectacle were not enough, some professors of constitutional law have argued that we are bound to accept the trial judge’s findings—including those on major philosophical questions and predictions about the future—unless they are “clearly erroneous.” See Brief for Constitutional Law and Civil Procedure Professors as Amici Curiae in Hollingsworth v. Perry, O. T. 2012, No. 12–144, pp. 2–3 (“[T]he district court’s factual findings are compelling and should be given significant weight”); id., at 25 (“Under any standard of review, this Court should credit and adopt the trial court’s findings because they result from rigorous and exacting application of the Federal Rules of Evidence, and are supported by reliable research and by the unanimous consensus of mainstream social science experts”). Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously.
SUPREME COURT OF THE UNITED STATES
UNITED STATES, PETITIONER v. EDITH SCHLAIN WINDSOR, in her capacity as executor of the ESTATE OF THEA CLARA SPYER, et al.
on writ of certiorari to the united states court of appeals for the second circuit
[June 26, 2013]
Justice Scalia, with whom Justice Thomas joins, and with whom The Chief Justice joins as to Part I, dissenting.
This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.I A
The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?
The answer lies at the heart of the jurisdictional portion of today’s opinion, where a single sentence lays bare the majority’s vision of our role. The Court says that we have the power to decide this case because if we did not, then our “primary role in determining the constitutionality of a law” (at least one that “has inflicted real injury on a plaintiff”) would “become only secondary to the President’s.” Ante, at 12. But wait, the reader wonders—Windsor won below, and so cured her injury, and the President was glad to see it. True, says the majority, but judicial review must march on regardless, lest we “undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.” Ibid. (internal quotation marks and brackets omitted).
That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.
This image of the Court would have been unrecognizable to those who wrote and ratified our national charter. They knew well the dangers of “primary” power, and so created branches of government that would be “perfectly co-ordinate by the terms of their common commission,” none of which branches could “pretend to an exclusive or superior right of settling the boundaries between their respective powers.” The Federalist, No. 49, p. 314 (C. Rossiter ed. 1961) (J. Madison). The people did this to protect themselves. They did it to guard their right to self-rule against the black-robed supremacy that today’s majority finds so attractive. So it was that Madison could confidently state, with no fear of contradiction, that there was nothing of “greater intrinsic value” or “stamped with the authority of more enlightened patrons of liberty” than a government of separate and coordinate powers. Id., No. 47, at 301.
For this reason we are quite forbidden to say what the law is whenever (as today’s opinion asserts) “ ‘an Act of Congress is alleged to conflict with the Constitution.’ ” Ante, at 12. We can do so only when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party. The “judicial Power” is not, as the majority believes, the power “ ‘to say what the law is,’ ” ibid., giving the Supreme Court the “primary role in determining the constitutionality of laws.” The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit. See, e.g., Basic Law for the Federal Republic of Germany, Art. 93. The judicial power as Americans have understood it (and their English ancestors before them) is the power to adjudicate, with conclusive effect, disputed government claims (civil or criminal) against private persons, and disputed claims by private persons against the government or other private persons. Sometimes (though not always) the parties before the court disagree not with regard to the facts of their case (or not only with regard to the facts) but with regard to the applicable law—in which event (and only in which event) it becomes the “ ‘province and duty of the judicial department to say what the law is.’ ” Ante, at 12.
In other words, 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, free-standing 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.’ ” That is why, in 1793, we politely declined the Washington Administration’s request to “say what the law is” on a particular treaty matter that was not the subject of a concrete legal controversy. 3 Correspondence and Public Papers of John Jay 486–489 (H. Johnston ed. 1893). And that is why, as our opinions have said, some questions of law will never be presented to this Court, because there will never be anyone with standing to bring a lawsuit. See Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 227 (1974) ; United States v. Richardson, 418 U. S. 166, 179 (1974) . As Justice Brandeis put it, we cannot “pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding”; absent a “ ‘real, earnest and vital controversy between individuals,’ ” we have neither any work to do nor any power to do it. Ashwander v. TVA, 297 U. S. 288, 346 (1936) (concurring opinion) (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339, 345 (1892) ). Our authority begins and ends with the need to adjudge the rights of an injured party who stands before us seeking redress. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) .
That is completely absent here. Windsor’s injury was cured by the judgment in her favor. And while, in ordinary circumstances, the United States is injured by a directive to pay a tax refund, this suit is far from ordinary. Whatever injury the United States has suffered will surely not be redressed by the action that it, as a litigant, asks us to take. The final sentence of the Solicitor General’s brief on the merits reads: “For the foregoing reasons, the judgment of the court of appeals should be affirmed.” Brief for United States (merits) 54 (emphasis added). That will not cure the Government’s injury, but carve it into stone. One could spend many fruitless afternoons ransacking our library for any other petitioner’s brief seeking an affirmance of the judgment against it. 1 What the petitioner United States asks us to do in the case before us is exactly what the respondent Windsor asks us to do: not to provide relief from the judgment below but to say that that judgment was correct. And the same was true in the Court of Appeals: Neither party sought to undo the judgment for Windsor, and so that court should have dismissed the appeal (just as we should dismiss) for lack of jurisdiction. Since both parties agreed with the judgment of the District Court for the Southern District of New York, the suit should have ended there. The further proceedings have been a contrivance, having no object in mind except to elevate a District Court judgment that has no precedential effect in other courts, to one that has precedential effect throughout the Second Circuit, and then (in this Court) precedential effect throughout the United States.
We have never before agreed to speak—to “say what the law is”—where there is no controversy before us. In the more than two centuries that this Court has existed as an institution, we have never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question’s answer. The United States reluctantly conceded that at oral argument. See Tr. of Oral Arg. 19–20.
The closest we have ever come to what the Court blesses today was our opinion in INS v. Chadha, 462 U. S. 919 (1983) . But in that case, two parties to the litigation
disagreed with the position of the United States and with the court below: the House and Senate, which had intervened in the case. Because Chadha concerned the validity of a mode of congressional action—the one-house legislative veto—the House and Senate were threatened with destruction of what they claimed to be one of their institutional powers. The Executive choosing not to defend that power, 2 we permitted the House and Senate to intervene. Nothing like that is present here.
To be sure, the Court in Chadha said that statutory aggrieved-party status was “not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional.” Id., at 930–931. But in a footnote to that statement, the Court acknowledged Article III’s separate requirement of a “justiciable case or controversy,” and stated that this requirement was satisfied “because of the presence of the two Houses of Congress as adverse parties.” Id., at 931, n. 6. Later in its opinion, the Chadha Court remarked that the United States’ announced intention to enforce the statute also sufficed to permit judicial review, even absent congressional participation. Id., at 939. That remark is true, as a description of the judicial review conducted in the Court of Appeals, where the Houses of Congress had not inter
vened. (The case originated in the Court of Appeals, since it sought review of agency action under 8 U. S. C. §1105a(a) (1976 ed.).) There, absent a judgment setting aside the INS order, Chadha faced deportation. This passage of our opinion seems to be addressing that initial standing in the Court of Appeals, as indicated by its quotation from the lower court’s opinion, 462 U. S., at 939–940. But if it was addressing standing to pursue the appeal, the remark was both the purest dictum (as congressional intervention at that point made the required adverseness “beyond doubt,” id., at 939), and quite incorrect. When a private party has a judicial decree safely in hand to prevent his injury, additional judicial action requires that a party injured by the decree seek to undo it. In Chadha, the intervening House and Senate fulfilled that requirement. Here no one does.
The majority’s discussion of the requirements of Article III bears no resemblance to our jurisprudence. It accuses the amicus (appointed to argue against our jurisdiction) of “elid[ing] the distinction between . . . the jurisdictional requirements of Article III and the prudential limits on its exercise.” Ante, at 6. It then proceeds to call the requirement of adverseness a “prudential” aspect of standing. Of standing. That is incomprehensible. A plaintiff (or appellant) can have all the standing in the world—satisfying all three standing requirements of Lujan that the majority so carefully quotes, ante, at 7—and yet no Article III controversy may be before the court. Article III requires not just a plaintiff (or appellant) who has standing to complain but an opposing party who denies the validity of the complaint. It is not the amicus that has done the eliding of distinctions, but the majority, calling the quite separate Article III requirement of adverseness between the parties an element (which it then pronounces a “prudential” element) of standing. The question here is not whether, as the majority puts it, “the United States retains a stake sufficient to support Article III jurisdiction,” ibid. the question is whether there is any controversy (which requires contradiction) between the United States and Ms. Windsor. There is not.
I find it wryly amusing that the majority seeks to dismiss the requirement of party-adverseness as nothing more than a “prudential” aspect of the sole Article III requirement of standing. (Relegating a jurisdictional requirement to “prudential” status is a wondrous device, enabling courts to ignore the requirement whenever they believe it “prudent”—which is to say, a good idea.) Half a century ago, a Court similarly bent upon announcing its view regarding the constitutionality of a federal statute achieved that goal by effecting a remarkably similar but completely opposite distortion of the principles limiting our jurisdiction. The Court’s notorious opinion in Flast v. Cohen, 392 U. S. 83 –101 (1968), held that standing was merely an element (which it pronounced to be a “prudential” element) of the sole Article III requirement of adverseness. We have been living with the chaos created by that power-grabbing decision ever since, see Hein v. Freedom From Religion Foundation, Inc., 551 U. S. 587 (2007) , as we will have to live with the chaos created by this one.
The authorities the majority cites fall miles short of supporting the counterintuitive notion that an Article III “controversy” can exist without disagreement between the parties. In Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326 (1980) , the District Court had entered judgment in the individual plaintiff’s favor based on the defendant bank’s offer to pay the full amount claimed. The plaintiff, however, sought to appeal the District Court’s denial of class certification under Federal Rule of Civil Procedure 23. There was a continuing dispute between the parties concerning the issue raised on appeal. The same is true of the other case cited by the majority, Camreta v. Greene, 563 U. S. ___ (2011). There the District Court found that the defendant state officers had violated the Fourth Amendment, but rendered judgment in their favor because they were entitled to official immunity, application of the Fourth Amendment to their conduct not having been clear at the time of violation. The officers sought to appeal the holding of Fourth Amendment violation, which would circumscribe their future conduct; the plaintiff continued to insist that a Fourth Amendment violation had occurred. The “prudential” discretion to which both those cases refer was the discretion to deny an appeal even when a live controversy exists—not the discretion to grant one when it does not. The majority can cite no case in which this Court entertained an appeal in which both parties urged us to affirm the judgment below. And that is because the existence of a controversy is not a “prudential” requirement that we have invented, but an essential element of an Article III case or controversy. The majority’s notion that a case between friendly parties can be entertained so long as “adversarial presentation of the issues is assured by the participation of amici curiae prepared to defend with vigor” the other side of the issue, ante, at 10, effects a breathtaking revolution in our Article III jurisprudence.
It may be argued that if what we say is true some Presidential determinations that statutes are unconstitutional will not be subject to our review. That is as it should be, when both the President and the plaintiff agree that the statute is unconstitutional. Where the Executive is enforcing an unconstitutional law, suit will of course lie; but if, in that suit, the Executive admits the unconstitutionality of the law, the litigation should end in an order or a consent decree enjoining enforcement. This suit saw the light of day only because the President enforced the Act (and thus gave Windsor standing to sue) even though he believed it unconstitutional. He could have equally chosen (more appropriately, some would say) neither to enforce nor to defend the statute he believed to be unconstitutional, see Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. Off. Legal Counsel 199 (Nov. 2, 1994)—in which event Windsor would not have been injured, the District Court could not have refereed this friendly scrimmage, and the Executive’s determination of unconstitutionality would have escaped this Court’s desire to blurt out its view of the law. The matter would have been left, as so many matters ought to be left, to a tug of war between the President and the Congress, which has innumerable means (up to and including impeachment) of compelling the President to enforce the laws it has written. Or the President could have evaded presentation of the constitutional issue to this Court simply by declining to appeal the District Court and Court of Appeals dispositions he agreed with. Be sure of this much: If a President wants to insulate his judgment of unconstitutionality from our review, he can. What the views urged in this dissent produce is not insulation from judicial review but insulation from Executive contrivance.
The majority brandishes the famous sentence from Marbury v. Madison, 1 Cranch 137, 177 (1803) that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Ante, at 12 (internal quotation marks omitted). But that sentence neither says nor implies that it is always the province and duty of the Court to say what the law is—much less that its responsibility in that regard is a “primary” one. The very next sentence of Chief Justice Marshall’s opinion makes the crucial qualification that today’s majority ignores: “Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” 1 Cranch, at 177 (emphasis added). Only when a “particular case” is before us—that is, a controversy that it is our business to resolve under Article III—do we have the province and duty to pronounce the law. For the views of our early Court more precisely addressing the question before us here, the majority ought instead to have consulted the opinion of Chief Justice Taney in Lord v. Veazie, 8 How. 251 (1850):
“The objection in the case before us is . . . that the plaintiff and defendant have the same interest, and that interest adverse and in conflict with the interest of third persons, whose rights would be seriously affected if the question of law was decided in the manner that both of the parties to this suit desire it to be.
“A judgment entered under such circumstances, and for such purposes, is a mere form. The whole proceeding was in contempt of the court, and highly reprehensible . . . . A judgment in form, thus procured, in the eye of the law is no judgment of the court. It is a nullity, and no writ of error will lie upon it. This writ is, therefore, dismissed.” Id., at 255–256.
There is, in the words of Marbury, no “necessity [to] expound and interpret” the law in this case; just a desire to place this Court at the center of the Nation’s life. 1 Cranch, at 177.B
A few words in response to the theory of jurisdiction set forth in Justice Alito’s dissent: Though less far reaching in its consequences than the majority’s conversion of constitutionally required adverseness into a discretionary element of standing, the theory of that dissent similarly elevates the Court to the “primary” determiner of constitutional questions involving the separation of powers, and, to boot, increases the power of the most dangerous branch: the “legislative department,” which by its nature “draw[s] all power into its impetuous vortex.” The Federalist, No. 48, at 309 (J. Madison). Heretofore in our national history, the President’s failure to “take Care that the Laws be faithfully executed,” U. S. Const., Art. II, §3, could only be brought before a judicial tribunal by someone whose concrete interests were harmed by that alleged failure. Justice Alito would create a system in which Congress can hale the Executive before the courts not only to vindicate its own institutional powers to act, but to correct a perceived inadequacy in the execution of its laws. 3 This would lay to rest Tocqueville’s praise of our judicial system as one which “intimately bind[s] the case made for the law with the case made for one man,” one in which legislation is “no longer exposed to the daily aggression of the parties,” and in which “[t]he political question that [the judge] must resolve is linked to the interest” of private litigants. A. de Tocqueville, Democracy in America 97 (H. Mansfield
& D. Winthrop eds. 2000). That would be replaced by a system in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President refuses to implement a statute he believes to be unconstitutional, and whenever he implements a law in a manner that is not to Congress’s liking.
Justice Alito’s notion of standing will likewise enormously shrink the area to which “judicial censure, exercised by the courts on legislation, cannot extend,” ibid. For example, a bare majority of both Houses could bring into court the assertion that the Executive’s implementation of welfare programs is too generous—a failure that no other litigant would have standing to complain about. Moreover, as we indicated in Raines v. Byrd, 521 U. S. 811, 828 (1997) , if Congress can sue the Executive for the erroneous application of the law that “injures” its power to legislate, surely the Executive can sue Congress for its erroneous adoption of an unconstitutional law that “injures” the Executive’s power to administer—or perhaps for its protracted failure to act on one of his nominations. The opportunities for dragging the courts into disputes hitherto left for political resolution are endless.
Justice Alito’s dissent is correct that Raines did not formally decide this issue, but its reasoning does. The opinion spends three pages discussing famous, decades-long disputes between the President and Congress—regarding congressional power to forbid the Presidential removal of executive officers, regarding the legislative veto, regarding congressional appointment of executive officers, and regarding the pocket veto—that would surely have been promptly resolved by a Congress-vs.-the-President lawsuit if the impairment of a branch’s powers alone conferred standing to commence litigation. But it does not, and never has; the “enormous power that the judiciary would acquire” from the ability to adjudicate such suits “would have made a mockery of [Hamilton’s] quotation of Montesquieu to the effect that ‘of the three powers above mentioned . . . the JUDICIARY is next to nothing.’ ” Barnes v. Kline, 759 F. 2d 21, 58 (CADC 1985) (Bork, J., dissenting) (quoting The Federalist No. 78 (A. Hamilton)).
To be sure, if Congress cannot invoke our authority in the way that Justice Alito proposes, then its only recourse is to confront the President directly. Unimaginable evil this is not. Our system is designed for confrontation. That is what “[a]mbition . . . counteract[ing] ambition,” The Federalist, No. 51, at 322 (J. Madison), is all about. If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing to confirm Presidential appointees to the elimination of funding. (Nothing says “enforce the Act” quite like “. . . or you will have money for little else.”) But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so. Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faithfully implement the Court’s decree, just as he did not faithfully implement Congress’s statute, what then? Only Congress can bring him to heel by . . . what do you think? Yes: a direct confrontation with the President.II
For the reasons above, I think that this Court has, and the Court of Appeals had, no power to decide this suit. We should vacate the decision below and remand to the Court of Appeals for the Second Circuit, with instructions to dismiss the appeal. Given that the majority has volunteered its view of the merits, however, I proceed to discuss that as well.A
There are many remarkable things about the majority’s merits holding. The first is how rootless and shifting its justifications are. For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations—initially fooling many readers, I am sure, into thinking that this is a federalism opinion. But we are eventually told that “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution,” and that “[t]he State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism” because “the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.” Ante, at 18. But no one questions the power of the States to define marriage (with the concomitant conferral of dignity and status), so what is the point of devoting seven pages to describing how long and well established that power is? Even after the opinion has formally disclaimed reliance upon principles of federalism, mentions of “the usual tradition of recognizing and accepting state definitions of marriage” continue. See, e.g., ante, at 20. What to make of this? The opinion never explains. My guess is that the majority, while reluctant to suggest that defining the meaning of “marriage” in federal statutes is unsupported by any of the Federal Government’s enumerated powers, 4 nonetheless needs some rhetorical basis to support its pretense that today’s prohibition of
laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term). But I am only guessing.
Equally perplexing are the opinion’s references to “the Constitution’s guarantee of equality.” Ibid. Near the end of the opinion, we are told that although the “equal protection guarantee of the Fourteenth Amendment makes [the] Fifth Amendment [due process] right all the more specific and all the better understood and preserved”—what can that mean?—“the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does.” Ante, at 25. The only possible interpretation of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today’s holding. But the portion of the majority opinion that explains why DOMA is unconstitutional (Part IV) begins by citing Bolling v. Sharpe, 347 U. S. 497 (1954) , Department of Agriculture v. Moreno, 413 U. S. 528 (1973) , and Romer v. Evans, 517 U. S. 620 (1996) —all of which are equal-protection cases. 5 And those three cases are the only authorities that the Court cites in Part IV about the Constitution’s meaning, except for its citation of Lawrence v. Texas, 539 U. S. 558 (2003) (not an equal-protection case) to support its passing assertion that the Constitution protects the “moral and sexual choices” of same-sex couples, ante, at 23.
Moreover, if this is meant to be an equal-protection opinion, it is a confusing one. The opinion does not resolve and indeed does not even mention what had been the
central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality. That is the issue that divided the parties and the court below, compare Brief for Respondent Bipartisan Legal Advisory Group of U. S. House of Representatives (merits) 24–28 (no), with Brief for Respondent Windsor (merits) 17–31 and Brief for United States (merits) 18–36 (yes); and compare 699 F. 3d 169, 180–185 (CA2 2012) (yes), with id., at 208–211 (Straub, J., dissenting in part and concurring in part) (no). In accord with my previously expressed skepticism about the Court’s “tiers of scrutiny” approach, I would review this classification only for its rationality. See United States v. Virginia, 518 U. S. 515 –570 (1996) (Scalia, J., dissenting). As nearly as I can tell, the Court agrees with that; its opinion does not apply strict scrutiny, and its central propositions are taken from rational-basis cases like Moreno. But the Court certainly does not apply anything that resembles that deferential framework. See Heller v. Doe, 509 U. S. 312, 320 (1993) (a classification “ ‘must be upheld . . . if there is any reasonably conceivable state of facts’ ” that could justify it).
The majority opinion need not get into the strict-vs.-rational-basis scrutiny question, and need not justify its holding under either, because it says that DOMA is unconstitutional as “a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,” ante, at 25; that it violates “basic due process” principles, ante, at 20; and that it inflicts an “injury and indignity” of a kind that denies “an essential part of the liberty protected by the Fifth Amendment,” ante, at 19. The majority never utters the dread words “substantive due process,” perhaps sensing the disrepute into which that doctrine has fallen, but that is what those statements mean. Yet the opinion does not argue that same-sex marriage is “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702 –721 (1997), a claim that would of course be quite absurd. So would the further suggestion (also necessary, under our substantive-due-process precedents) that a world in which DOMA exists is one bereft of “ ‘ordered liberty.’ ” Id., at 721 (quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937) ).
Some might conclude that this loaf could have used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due-process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a “ ‘bare . . . desire to harm’ ” couples in same-sex marriages. Ante, at 20. It is this proposition with which I will therefore engage.B
As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. See Lawrence v. Texas, 539 U. S. 558, 599 (2003) (Scalia, J., dissenting). I will not swell the U. S. Reports with restatements of that point. It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.
However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court’s conclusion that only those with hateful hearts could have voted “aye” on this Act. And more importantly, they serve to make the contents of the legislators’ hearts quite irrelevant: “It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” United States v. O’Brien, 391 U. S. 367, 383 (1968) . Or at least it was a familiar principle. By holding to the contrary, the majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.
The majority concludes that the only motive for this Act was the “bare . . . desire to harm a politically unpopular group.” Ante, at 20. Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state (familiar objects of the Court’s scorn, see, e.g., Edwards v. Aguillard, 482 U. S. 578 (1987) ), but our respected coordinate branches, the Congress and Presidency of the United States. Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute. The majority does the opposite—affirmatively concealing from the reader the arguments that exist in justification. It makes only a passing mention of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them. See ante, at 21. I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.
To choose just one of these defenders’ arguments, DOMA avoids difficult choice-of-law issues that will now arise absent a uniform federal definition of marriage. See, e.g., Baude, Beyond DOMA: Choice of State Law in Federal Statutes, 64 Stan. L. Rev. 1371 (2012). Imagine a pair of women who marry in Albany and then move to Alabama, which does not “recognize as valid any marriage of parties of the same sex.” Ala. Code §30–1–19(e) (2011). When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules? If so, which State’s? And what about States where the status of an out-of-state same-sex marriage is an unsettled question under local law? See Godfrey v. Spano, 13 N. Y. 3d 358, 920 N. E. 2d 328 (2009). DOMA avoided all of this uncertainty by specifying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision.
Further, DOMA preserves the intended effects of prior legislation against then-unforeseen changes in circumstance. When Congress provided (for example) that a special estate-tax exemption would exist for spouses, this exemption reached only opposite-sex spouses—those being the only sort that were recognized in any State at the time of DOMA’s passage. When it became clear that changes in state law might one day alter that balance, DOMA’s definitional section was enacted to ensure that state-level experimentation did not automatically alter the basic operation of federal law, unless and until Congress made the further judgment to do so on its own. That is not animus—just stabilizing prudence. Congress has hardly demonstrated itself unwilling to make such further, revising judgments upon due deliberation. See, e.g., Don’t Ask, Don’t Tell Repeal Act of 2010, 124Stat. 3515.
The Court mentions none of this. Instead, it accuses the Congress that enacted this law and the President who signed it of something much worse than, for example, having acted in excess of enumerated federal powers—or even having drawn distinctions that prove to be irrational. Those legal errors may be made in good faith, errors though they are. But the majority says that the supporters of this Act acted with malice—with the “purpose” (ante, at 25) “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” ibid.; to “impose inequality,” ante, at 22; to “impose . . . a stigma,” ante, at 21; to deny people “equal dignity,” ibid.; to brand gay people as “unworthy,” ante, at 23; and to “humiliat[e]” their children, ibid. (emphasis added).
I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.* * *
The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.” Ante, at 26, 25. I have heard such “bald, unreasoned disclaimer[s]” before. Lawrence, 539 U. S., at 604. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Id., at 578. Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” ante, at 23—with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.
I do not mean to suggest disagreement with The Chief Justice’s view, ante, p. 2–4 (dissenting opinion), that lower federal courts and state courts can distinguish today’s case when the issue before them is state denial of marital status to same-sex couples—or even that this Court could theoretically do so. Lord, an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways. And deserves to be. State and lower federal courts should take the Court at its word and distinguish away.
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “ ‘bare . . . desire to harm’ ” couples in same-sex marriages. Supra, at 18. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status. Consider how easy (inevitable) it is to make the following substitutions in a passage from today’s opinion ante, at 22:
“DOMA’s This state law’s principal effect is to identify a subset of state-sanctioned marriages constitutionally protected sexual relationships, see Lawrence, and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA this state law contrives to deprive some couples married under the laws of their State enjoying constitutionally protected sexual relationships, but not other couples, of both rights and responsibilities.”
Or try this passage, from ante, at 22–23:
“[DOMA] This state law tells those couples, and all the world, that their otherwise valid marriages relationships are unworthy of federal state recognition. This places same-sex couples in an unstable position of being in a second-tier marriage relationship. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, . . . .”
Or this, from ante, at 23—which does not even require alteration, except as to the invented number:
“And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”
Similarly transposable passages—deliberately transposable, I think—abound. In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that “personhood and dignity” in the first place. Ante, at 26. As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.
By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples, see ante, at 25, 26. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member of this institution.
As to that debate: Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides. Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves. Since DOMA’s passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices—in other words, democracy. Victories in one place for some, see North Carolina Const., Amdt. 1 (providing that “[m]arriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State”) (approved by a popular vote, 61% to 39% on May 8, 2012), 6 are offset by victories in other places for others, see Maryland Question 6 (establishing “that Maryland’s civil marriage laws allow gay and lesbian couples to obtain a civil marriage license”) (approved by a popular vote, 52% to 48%, on November 6, 2012). 7 Even in a single State, the question has come out differently on different occasions. Compare Maine Question 1 (permitting “the State of Maine to issue marriage licenses to same-sex couples”) (approved by a popular vote, 53% to 47%, on November 6, 2012) 8 with Maine Question 1 (rejecting “the new law that lets same-sex couples marry”) (approved by a popular vote, 53% to 47%, on November 3, 2009). 9
In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was
theirs to settle and that we would respect their resolution. We might have let the People decide.
But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.
1 For an even more advanced scavenger hunt, one might search the annals of Anglo-American law for another “Motion to Dismiss” like the one the United States filed in District Court: It argued that the court should agree “with Plaintiff and the United States” and “not dismiss” the complaint. (Emphasis mine.) Then, having gotten exactly what it asked for, the United States promptly appealed.
2 There the Justice Department’s refusal to defend the legislationwas in accord with its longstanding (and entirely reasonable) practice of declining to defend legislation that in its view infringes upon Presidential powers. There is no justification for the Justice Department’s abandoning the law in the present case. The majority opinion makes a point of scolding the President for his “failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions,” ante, at 12. But the rebuke is tongue-in-cheek, for the majority gladly gives the President what he wants. Contrary to all precedent, it decides this case (and even decides it the way the President wishes) despite his abandonment of the defense and the consequent absence of a case or controversy.
3 Justice Alito attempts to limit his argument by claiming that Congress is injured (and can therefore appeal) when its statute is held unconstitutional without Presidential defense, but is not injured when its statute is held unconstitutional despite Presidential defense. I do not understand that line. The injury to Congress is the same whether the President has defended the statute or not. And if the injury is threatened, why should Congress not be able to participate in the suit from the beginning, just as the President can? And if having a statute declared unconstitutional (and therefore inoperative) by a court is an injury, why is it not an injury when a statute is declared unconstitutional by the President and rendered inoperative by his consequent failure to enforce it? Or when the President simply declines to enforce it without opining on its constitutionality? If it is the inoperativeness that constitutes the injury—the “impairment of [the legislative] function,” as Justice Alito puts it, post, at 4—it should make no difference which of the other two branches inflicts it, and whether the Constitution is the pretext. A principled and predictable system of jurisprudence cannot rest upon a shifting concept of injury, designed to support standing when we would like it. If this Court agreed with Justice Alito’s distinction, its opinion in Raines v. Byrd, 521 U. S. 811 (1997) , which involved an original suit by Members of Congress challenging an assertedly unconstitutional law, would have been written quite differently; and Justice Alito’s distinguishing of that case on grounds quite irrelevant to his theory of standing would have been unnecessary.
4 Such a suggestion would be impossible, given the Federal Government’s long history of making pronouncements regarding marriage—for example, conditioning Utah’s entry into the Union upon its prohibition of polygamy. See Act of July 16, 1894, ch. 138, §3, 28Stat. 108 (“The constitution [of Utah]” must provide “perfect toleration of religious sentiment,” “Provided, That polygamous or plural marriages are forever prohibited”).
5 Since the Equal Protection Clause technically applies only against the States, see U. S. Const., Amdt. 14, Bolling and Moreno, dealing with federal action, relied upon “the equal protection component of the Due Process Clause of the Fifth Amendment,” Moreno, 413 U. S., at 533.
6 North Carolina State Board of Elections, Official Results: Primary Election of May 8, 2012, Constitutional Amendment.
7 Maryland State Board of Elections, Official 2012 Presidential General Election Results for All State Questions, Question 06.
8 Maine Bureau of Elections, Nov. 3, 2009, Referendum Tabulation (Question 1).
9 Maine Bureau of Elections, Nov. 6, 2012, Referendum ElectionTabulations (Question 1).
SUPREME COURT OF THE UNITED STATES
on writ of certiorari to the united states court of appeals for the second circuit
[June 26, 2013]
Chief Justice Roberts, dissenting.
I agree with Justice Scalia that this Court lacks jurisdiction to review the decisions of the courts below. On the merits of the constitutional dispute the Court decides to decide, I also agree with Justice Scalia that Congress acted constitutionally in passing the Defense of Marriage Act (DOMA). Interests in uniformity and stability amply justified Congress’s decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world. Post, at 19–20 (dissenting opinion).
The majority sees a more sinister motive, pointing out that the Federal Government has generally (though not uniformly) deferred to state definitions of marriage in the past. That is true, of course, but none of those prior state-by-state variations had involved differences over something—as the majority puts it—“thought of by most people as essential to the very definition of [marriage] and to its role and function throughout the history of civilization.” Ante, at 13. That the Federal Government treated this fundamental question differently than it treated variations over consanguinity or minimum age is hardly surprising—and hardly enough to support a conclusion that the “principal purpose,” ante, at 22, of the 342 Representatives and 85 Senators who voted for it, and the President who signed it, was a bare desire to harm. Nor do the snippets of legislative history and the banal title of the Act to which the majority points suffice to make such a showing. At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.
But while I disagree with the result to which the majority’s analysis leads it in this case, I think it more important to point out that its analysis leads no further. The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their “historic and essential authority to define the marital relation,” ante, at 18, may continue to utilize the traditional definition of marriage.
The majority goes out of its way to make this explicit in the penultimate sentence of its opinion. It states that “[t]his opinion and its holding are confined to those lawful marriages,” ante, at 26—referring to same-sex marriages that a State has already recognized as a result of the local “community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.” Ante, at 20. Justice Scalia believes this is a “ ‘bald, unreasoned disclaime[r].’ ” Post, at 22. In my view, though, the disclaimer is a logical and necessary consequence of the argument the majority has chosen to adopt. The dominant theme of the majority opinion is that the Federal Government’s intrusion into an area “central to state domestic relations law applicable to its residents and citizens” is sufficiently “unusual” to set off alarm bells. Ante, at 17, 20. I think the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism.
The majority extensively chronicles DOMA’s departure from the normal allocation of responsibility between State and Federal Governments, emphasizing that DOMA “rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State.” Ante, at 18. But there is no such departure when one State adopts or keeps a definition of marriage that differs from that of its neighbor, for it is entirely expected that state definitions would “vary, subject to constitutional guarantees, from one State to the next.” Ibid. Thus, while “[t]he State’s power in defining the marital relation is of central relevance” to the majority’s decision to strike down DOMA here, ibid., that power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions. So too will the concerns for state diversity and sovereignty that weigh against DOMA’s constitutionality in this case. See ante, at 19.
It is not just this central feature of the majority’s analysis that is unique to DOMA, but many considerations on the periphery as well. For example, the majority focuses on the legislative history and title of this particular Act, ante, at 21; those statute-specific considerations will, of course, be irrelevant in future cases about different statutes. The majority emphasizes that DOMA was a “systemwide enactment with no identified connection to any particular area of federal law,” but a State’s definition of marriage “is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.’ ” Ante, at 22, 17. And the federal decision undermined (in the majority’s view) the “dignity [already] conferred by the States in the exercise of their sovereign power,” ante, at 21, whereas a State’s decision whether to expand the definition of marriage from its traditional contours involves no similar concern.
We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples. That issue, however, is not before us in this case, and we hold today that we lack jurisdiction to consider it in the particular context of Hollingsworth v. Perry, ante, p. ___. I write only to highlight the limits of the majority’s holding and reasoning today, lest its opinion be taken to resolve not only a question that I believe is not properly before us—DOMA’s constitutionality—but also a question that all agree, and the Court explicitly acknowledges, is not at issue.
ORAL ARGUMENT OF VICKI C. JACKSON ON BEHALF OF THE COURT-APPOINTED AMICUS CURIAE
Chief Justice John G. Roberts: We will hear argument this morning in Case 12-307, United States v. Windsor, and we will begin with the jurisdictional discussion.
Vicki C. Jackson: Mr. Chief Justice, and may it please the Court:
There is no justiciable case before this Court.
Petitioner, the United States, does not ask this Court to redress the injuries it asserts.
The House of Representatives' Bipartisan Legal Advisory Group, the BLAG, which does seek redress in the form of reversal, asserts no judicially cognizable injury.
While it is natural to want to reach the merits of such a significant issue, as in Raines v.--
Byrd, this natural urge must be put aside because, however important the constitutional question, Article III prevents its decision here and requires this Court to await another case, another day, to decide the question.
In the district court, Ms. Windsor alleged classical Article III injury for which she sought redress.
Other persons injured by DOMA's operation could likewise sue in a first instance court and, if their challenge succeeds, obtain relief.
But to exercise jurisdiction on this appeal when the United States asked for the judgment below, fully agrees with it, and--
Justice Sonia Sotomayor: Who else is going to be aggrieved if she is not?
Meaning another person who is -- whose benefits are withheld, tax refund is withheld, is going to be in an identical situation to her?
Who else could come in?
Vicki C. Jackson: --Your Honor, it is possible that in district courts where other taxpayers sue the United States on similar relief, that the district courts will rule differently.
At least one district court that I'm aware of, in a case called Louie v. Holder, ruled against -- upheld DOMA even though the Government had switched its position at that time.
In addition, the issue of DOMA--
Justice Antonin Scalia: Excuse me.
If there is no jurisdiction here, why was there jurisdiction at the trial level?
Vicki C. Jackson: --Your Honor--
Justice Antonin Scalia: I mean, the Government comes in and says “ I agree ” -- or if there was jurisdiction, why did the Court ever have to get to the merits?
If you have a, let's say, a lawsuit on an -- on an indebtedness and the alleged debtor comes in and says, yeah, I owe them money, but I'm just not gonna pay it, which is the equivalent of the Government saying, yeah, it's unconstitutional but I'm going to enforce it anyway.
What would happen in that -- in that indebtedness suit is that the court would enter judgment and say, if you agree that you owe it, by God, you should pay it.
And there would be a judgment right there without any consideration of the merits, right?
Why didn't that happen here?
Vicki C. Jackson: --Your Honor, the -- the two questions that you asked me, why did the district court have jurisdiction, the first answer is that the party invoking the district court's jurisdiction was Ms.--
Windsor, who did have an injury.
As to why the district court didn't enter judgment when the United States switched its position, I -- I imagine that the Court was -- would have wanted to have development of that issue, which was achieved through the intervention of the BLAG in the trial court, so that the judgment of unconstitutionality and of refund would have had a robust hearing--
Justice Antonin Scalia: Really, that's very peculiar.
When -- when both parties to the case agree on what the law is?
What, the -- just for fun, the district judge is -- is going to have a hearing?
Vicki C. Jackson: --Well, Your Honor, the jurisdiction of the Court, it seems to me, is not affected by the length of the proceedings it undertook.
Justice Antonin Scalia: I'm not talking about jurisdiction now.
I'm talking about why the district court, without getting to the merits, should not have entered judgment against the Government.
Vicki C. Jackson: --I am not sure I have a wonderful answer to that question, Justice Scalia, but I do think the case bears some similarities to Kentucky against Indiana, which was discussed by the parties, where Kentucky sued Indiana in this Court's original jurisdiction on a contract.
The two States had a contract.
Indiana agreed it was obligated to perform, but it wasn't performing.
There -- it was worried about a State court lawsuit.
This Court exercised original jurisdiction to give Kentucky relief.
And I think that's analogous to what the district court did there.
The issue before us today, I think, is an issue of appellate jurisdiction.
And the U.S. is seeking to invoke the appellate jurisdiction of Article III courts, notwithstanding that it doesn't seek relief; it seeks affirmance.
Justice Samuel Alito: Well, the Solicitor General's standing argument is very abstract.
But here is one possible way of understanding it, perhaps the Solicitor General will disavow it, but it would go like this: The President's position in this case is that he is going to continue to enforce DOMA, engage in conduct that he believes is unconstitutional, until this Court tells him to stop.
The judgment of the Second Circuit told the Executive Branch to comply with the Equal Protection Clause immediately.
The President disagrees with the temporal aspect of that, so the Executive is aggrieved in the sense that the Executive is ordered to do something prior to the point when the Executive believes it should do that thing.
Now, wouldn't that be sufficient to make -- to create injury in the Executive and render the Executive an aggrieved party?
Vicki C. Jackson: I think not, Your Honor.
I think not, because I don't see how that would be any different from any party saying, well, we really don't want to pay this judgment until we're sure all of the courts agree.
And I think this Court's -- this Court doesn't have a lot of case law where a party seeks review to get affirmance.
But in the Princeton University against Schmidt case, there was a State court conviction, Ohio State Court overturns it, Princeton University seeks review, because its regulations were at issue.
New Jersey joins in seeking review, but does not ask for relief; does not take a position on what relief would be appropriate.
Justice Stephen G. Breyer: Why -- why wouldn't -- imagine -- there in Article II, it says that the President shall take care that the laws be faithfully executed.
So the President has worked out -- I, personally, and for reasons in -- in my department, others think that this law is unconstitutional, but I have this obligation.
And because I have this obligation, I will not, I will continue to execute this law.
I will continue to execute it though I disagree with it.
And I execute it until I have an authoritative determination not to.
Now, how is that different from a trustee who believes that he has an obligation to a trust to do something under a certain provision that he thinks doesn't require that, but, you know, there's a debate about it, but he says, I have the obligation here.
I'm going to follow this through.
There'd be standing in the second case for any fiduciary, despite his personal beliefs, to continue.
We'd understand that and say there was standing.
Why don't we here?
Vicki C. Jackson: Well, the trustee, I think, would be able to go to a court of first instance to get an adjudication of the claim.
What I'm submitting to you that the trustee could not do, after getting the first -- the judgment in the court of first instance stating what the remedy -- what the liability is, then seek review of that judgment, but ask only for it to be affirmed.
Justice Stephen G. Breyer: And that's the part I don't understand.
For -- if, in fact, as you agree, the trustee or other fiduciary in my example would indeed have standing to act according to the law, even though he thinks that that law is unconstitutional because of his obligation such as under Section 2.
You agree he has the -- he has -- there is standing when he goes into court in the first place, which surely he could interpret Article II as saying and you follow it through as long as you can do it, which includes appeals, until the matter is determined finally and authoritatively by a court.
If you could do the first, what suddenly stops you from doing the second?
Vicki C. Jackson: In the first instance, the obligations are uncertain the trustee is presumably subject to potentially adverse competing claims on his or her action.
Chief Justice John G. Roberts: Well, I would have thought--
Vicki C. Jackson: Those are--
Chief Justice John G. Roberts: --I would have thought your answer would be that the Executive's obligation to execute the law includes the obligation to execute the law consistent with the Constitution.
And if he has made a determination that executing the law by enforcing the terms is unconstitutional, I don't see why he doesn't have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we'll wait till the Supreme Court tells us we have no choice.
Vicki C. Jackson: --Mr. Chief Justice, I think that's a hard question under Article II.
But I think the Article III questions that this Court is facing turn on what the parties in the case have alleged, what relief they're seeking, and what the posture is.
Justice Anthony Kennedy: In Federal court's jurisprudence, are you saying there's a lack of adversity here?
Vicki C. Jackson: I am saying primarily--
Justice Anthony Kennedy: Can you give us a pigeonhole?
Vicki C. Jackson: --I -- it's a little difficult, because the circumstance is unusual, Justice Kennedy, but I think the most apt of the doctrines, although they are overlapping and reinforce each other, the most apt is standing.
This Court has made clear that a party on appeal has to meet the same Article III standing requirements of injury caused by the action complained of and redressable by the relief requested by the parties.
Justice Anthony Kennedy: But it seems to me there -- there's injury here.
Vicki C. Jackson: Well, Your Honor, I do not agree that the injuries alleged by the United States should be cognizable by the Article III courts, because those injuries are exactly what it asked the courts below to -- to produce.
But even if we treat the injuries as sufficiently alleged, Article III requires that the party complaining of injury ask the court to remedy that injury.
And that's a very important requirement, I think, under Article III for several reasons.
The idea of the case or controversy limitation, as I understand it, is part of a broader separation of powers picture, to make sure the Federal courts perform their proper role.
Their proper role is the redress of injury, and it is the need to redress injury in ordinary litigation that justifies judicial review of constitutional issues.
Justice Elena Kagan: But, Ms. Jackson, I mean, to go back to Justice Kennedy's point, we have injury here in the most classic, most concrete sense.
There's $300,000 that's going to come out of the Government's treasury if this decision is upheld, and it won't if it isn't.
Now, the Government is willing to pay that $300,000, would be happy to pay that $300,000, but whether the Government is happy or sad to pay that $300,000, the Government is still paying the $300,000, which in the usual set of circumstances is the classic Article III injury.
Why isn't it here?
Vicki C. Jackson: --Justice Kagan, there is a three-prong test.
Even if you treat that as injury, it does not meet the requirements for standing on appeal, because the Government has not asked this Court to remedy that injury.
The Government has not asked this Court to overturn the rulings below so it doesn't have to pay the $365,000.
It has asked this Court to affirm.
And the case or controversy requirement that we're talking about are nested in an adversarial system where we rely on the parties to state their injuries and make their claims for relief.
If the Government or any party is not bound with respect to standing by its articulated request for a remedy, what that does is it enables the Court to fill in, to reshape.
And for a doctrine that is supposed to be limiting the occasions for judicial review of constitutionality, that is troubling.
Justice Elena Kagan: But don't we often separate those two things, ask whether there's injury for Article III purposes and causation and redressability, as you say, but then say, well, sometimes when all of those are met, there's not going to be adequate presentation of the arguments, and so we will appoint an amicus or we'll restructure things?
And we do that when the Government confesses error, often.
I mean, we do that several times a year in this courtroom.
Vicki C. Jackson: Yes, Your Honor.
But concession of error cases, with respect, are quite different, because in concession of error cases typically both parties at the appellate level end up being adverse to the judgment below and they are asking relief from this Court from the judgment below.
But here we have a situation where, putting BLAG to one side for the moment, between the United States and Ms. Windsor there is no adversity, they're in agreement, and neither of them is asking this Court to reverse or modify the judgment below.
And so I think the confession of error cases are quite different from the perspective of Article III.
Justice Stephen G. Breyer: No, they're -- they're not in agreement about whether to pay the money or not.
They are in agreement about what arguments are correct legal arguments, and I can't think of a case other than the sham cases which -- which this isn't, where -- where you would find no standing or other obstacle.
And I can think of one case, which you haven't mentioned, namely, Chadha, which seems about identical.
Vicki C. Jackson: Your Honor, I don't think that Chadha is identical, with respect.
In -- for two main reasons.
In Chadha, the Court was I think quite careful to avoid deciding whether the United States had Article III standing.
It intensively analyzed a statute, since repealed, 1252, which gave this Court mandatory jurisdiction in cases in which a Federal statute was held unconstitutional and the U.S. was a party.
And it framed its analysis of whether the statute permitted the appeal.
What I think was -- oh, may I reserve my time for rebuttal?
Chief Justice John G. Roberts: You can finish your sentence.
Vicki C. Jackson: Thank you.
What was -- what was going on there was the Court said: Well, the statute wanted to reach very broadly, perhaps implicit, not stated, perhaps more broadly than Article III.
Congress said whenever you have this configuration, you go up to the Supreme Court.
Then the Supreme Court in Chadha says, of course, in addition to the statute, there must be Article III case or controversy, the presence of the congressional intervenors here provides it.
Chief Justice John G. Roberts: Thank you, counsel.
That was more than a sentence.
Vicki C. Jackson: --Oh, I'm sorry.
I'm sorry, Your Honor.
Chief Justice John G. Roberts: Mr. Srinivasan?
ORAL ARGUMENT OF SRI SRINIVASAN, ON BEHALF OF THE PETITIONER, SUPPORTING AFFIRMANCE
Sri Srinivasan: Thank you, Mr. Chief Justice, and may it please the Court:
This Court has jurisdiction in this case based on the petition filed by the United States for the same reasons it had jurisdiction in parallel circumstances in Chadha and Lovett.
There are two issues that have been -- that have been brought up this morning and I'd like to address each in turn.
One is whether there's a concrete case or controversy -- case or controversy in the sense of adversity in this Court; and the second is the question of whether there's Article III standing for the Government to bring this case before the Court.
Chief Justice John G. Roberts: On the first one, is there any case where all the parties agreed with the decision below and we upheld appellate jurisdiction?
Sri Srinivasan: Where the parties agreed--
Chief Justice John G. Roberts: All the parties agreed with the decision below and we nonetheless upheld appellate jurisdiction.
Sri Srinivasan: --Well, you didn't speak to it in Lovett, Your Honor, but that was the circumstance in Lovett.
Chief Justice John G. Roberts: No, it wasn't raised -- it wasn't raised or addressed, and that had the distinct situation of an appeal, direct appeal from an Article I tribunal.
Sri Srinivasan: Well, I don't -- I don't know that that matters, because you had to satisfy Article III prerequisites to have the case in this Court.
Now, Your Honor is, of course, correct that the -- the Court didn't affirmatively engage on the issue of jurisdiction, but that is a scenario--
Chief Justice John G. Roberts: Okay.
So putting Lovett aside, since none of this was discussed, is there any, any case?
Sri Srinivasan: --No, I don't know of one.
But these -- but, Mr. Chief Justice, with all due respect--
Chief Justice John G. Roberts: So this is totally unprecedented.
You're asking us to do something we have never done before to reach the issue in this case.
Sri Srinivasan: --Let me say two things about that if I might, Your Honor.
First is that it's -- it's unusual, but that's not at all surprising, because the--
Chief Justice John G. Roberts: No, it's not just -- it's not unusual.
It's totally unprecedented.
Sri Srinivasan: --Well, it's totally unprecedented in one respect, Your Honor.
If you look at Chadha -- okay, the second point I'd make.
Let me make one point at the outset, though, which is that whether it's totally unusual or largely unusual, I grant you that it doesn't happen.
But the reason it doesn't happen is because -- I wouldn't confuse a numerator with a denominator.
This set of circumstances just doesn't arise very often.
Now, it's true that when this set of circumstances--
Justice Antonin Scalia: It has not arisen very often in the past, because in the past, when I was at the Office of Legal Counsel, there was an opinion of the Office of Legal Counsel which says that the Attorney General will defend the laws of the United States, except in two circumstances: Number one, where the basis for the alleged unconstitutionality has to do with presidential powers.
When the presidential powers are involved, he's the lawyer for the President.
So he can say, we think the statute's unconstitutional, I won't defend it.
The second situation is where no possible rational argument could be made in defense of it.
Now, neither of those situations exists here.
And I'm wondering if we're living in this new world where the Attorney General can simply decide, yeah, it's unconstitutional, but it's not so unconstitutional that I'm not willing to enforce it, if we're in this new world, I -- I don't want these cases like this to come before this Court all the time.
And I think they will come all the time if that's -- if that's -- if that's the new regime in the Justice Department that we're dealing with.
Sri Srinivasan: --Justice Scalia, one recognized situation in which an act of Congress won't be defended in court is when the President makes a determination that the act is unconstitutional.
That's what happened here.
The President made an accountable legal determination that this Act of Congress is unconstitutional.
Justice Anthony Kennedy: But then why does he enforce the statute?
Sri Srinivasan: Well, that's an option that's available to him, Justice Kennedy.
In certain circumstances, it makes sense not to enforce.
But I don't think the take-care responsibility is an all or nothing proposition such that when the President reaches a determination that a statute is unconstitutional, it necessarily follows that he wouldn't enforce it.
That's not what happened in Lovett.
Justice Anthony Kennedy: But let me ask you, suppose that constitutional scholars have grave doubts about the practice of the President signing a bill but saying that he thinks it's, unconstitutional -- what do you call it, signing statements or something like that.
It seems to me that if we adopt your position that that would ratify and confirm and encourage that questionable practice, because if the President thinks the law is unconstitutional he shouldn't sign it, according to some view.
And that's a lot like what you're arguing here.
It's very troubling.
Sri Srinivasan: --I -- in the -- in the signing statement situation, Your Honor, one example in the past is Turner Broadcasting.
In Turner Broadcasting, that was a circumstance in which it was -- it was a veto, but in the course of the veto the President made the determination that a particular aspect of that statute was unconstitutional.
And what happened as a result of that is that the Department of Justice didn't defend that aspect of the statute in litigation.
Now, a subsequent President reached a contrary conclusion.
But -- but my point is simply that when the President makes a determination that a statute is unconstitutional, it can follow that the Department of Justice won't defend it in litigation.
Chief Justice John G. Roberts: Sometimes you do and sometimes you don't.
What is the test for when you think your obligation to take care that the laws be faithfully executed means you'll follow your view about whether it's constitutional or not or you won't follow your view?
Sri Srinivasan: Mr. Chief Justice, I'd hesitate to give you a black-and-white algorithm.
There are -- there are several considerations that would factor into it.
One of the considerations--
Justice Antonin Scalia: Excuse me.
It's not your view.
It's the President's.
It's only when the President thinks it's unconstitutional that you can decline to defend it?
Or what if the Attorney General thinks it's unconstitutional?
Sri Srinivasan: --No, no.
Justice Antonin Scalia: Or the Solicitor General, is that enough?
Sri Srinivasan: --28 U.S.C. 530(d) presupposes -- Congress presupposes that there are going to be occasions in which a statute is -- is not defended because of a conclusion by the Attorney General that it's unconstitutional.
Justice Antonin Scalia: Oh, it can be either the Attorney General or the Solicitor General?
Sri Srinivasan: It could be, but this is a situation in which the President made the determination.
And when the President makes that determination, there are a few considerations that I think would factor into the mix in determining whether enforcement will follow.
One of them would be the consequences of enforcement for the individuals who are affected.
And so, for example, I would assume that if it's a criminal statute that we're talking about, an enforcement would require criminal enforcement against somebody and -- which would beget criminal sanctions.
That may be--
Justice Antonin Scalia: So when Congress enacts a statute, it cannot be defended, it has no assurance that that statute will be defended in court, if the Solicitor General in his view thinks it's unconstitutional?
Sri Srinivasan: --There have -- Justice Scalia--
Justice Antonin Scalia: Is that right?
Sri Srinivasan: --there have been occasions in the past.
Justice Antonin Scalia: Yes or no?
Sri Srinivasan: Yes.
Yes, it's true.
And 28 U.S.C. 530(d) exactly presupposes that.
That's the exact occasion in which that process is -- is occasioned.
Congress knew that this would happen.
Now, it can happen also when -- in the rare instance in which the President himself makes that determination.
And I don't think that the take-care clause responsibility has this all or nothing capacity to it.
It can be that the President decides--
Justice Ruth Bader Ginsburg: Mr. Srinivasan--
Justice Antonin Scalia: It's not what the OLC opinion said, by the way.
Sri Srinivasan: --It can be that the President decides to enforce it.
That's what happened in Lovett and that's the course of events that was sought -- that happened in Chadha.
Justice Ruth Bader Ginsburg: --But when the Government -- when the -- when the case is adjudicated in the first instance -- we're talking here about appellate authority.
Sri Srinivasan: --Correct.
Justice Ruth Bader Ginsburg: The Government sometimes loses cases in the first instance and then it doesn't appeal.
If it agrees with the result that the court reached, it doesn't appeal and then the judgment in the first instance where there was adversity is -- is the last word.
So, when does the Government decide, yes, we agree with the -- the adjudication in the court of first instance and so we'll leave it there, and when does it say, yeah, we agree, but we want higher authority to participate?
Sri Srinivasan: Well, there are -- there are a number of considerations that could factor into it, Justice Ginsburg.
You're right that either of those scenarios is possible.
The reason that the Government appealed in this case is because the President made the determination that this statute would continue to be enforced, and that was out of respect for the Congress that enacted the law and the President who signed it, and out of respect for the role of the judiciary in saying what the law is.
The point of taking an appeal here is that the Government suffered an injury because a judgment was entered against the Government in the court of appeals.
That's a classic case for injury.
Justice Sonia Sotomayor: Counsel, could you not run out of time on the BLAG standing?
I know we -- we didn't permit Ms. Jackson to -- to address it.
So don't run out of time on that.
Sri Srinivasan: I -- I won't, Your Honor.
I'll be happy to turn -- turn to BLAG standing.
I would like to make a couple of points on the question of our own standing to bring the petition before the Court.
And I think Justice Breyer was right.
The key precedent here is Chadha.
Chadha establishes a couple of things.
First, Chadha establishes that there is aggrievement in the circumstances of this case.
And I don't see what the difference is between aggrievement for purposes of statutory -- the statutory analysis at issue in Chadha, and injury for purposes of Article III.
Justice Samuel Alito: Well, how are you aggrieved?
“ Aggrieved ” means that you are deprived of your legal rights.
And you don't think that you've been deprived of your legal rights because your rights -- your obligations under the Constitution supercede DOMA, and you haven't been deprived of anything that you're entitled to under the Constitution.
So how are you aggrieved?
Sri Srinivasan: I guess we'd -- I'd subscribe to the aggrievement analysis that the Court made in Chadha at pages 929 to 931 of its opinion.
And what the Court said is this:
"When an agency of the United States is a party to a case in which an act of Congress that it administers is held unconstitutional, it is an aggrieved party. "
"The agency's status as an aggrieved party is not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional. "
That description is on all fours with the circumstances of this case.
Justice Samuel Alito: Could I just -- before you go on to the House group, could I just clear up something?
In your brief, you argue that you are representing all three branches of the Government, is that right?
Sri Srinivasan: Correct.
Justice Samuel Alito: You're -- you're representing the Judiciary as you stand before us here today--
Sri Srinivasan: Well--
Justice Samuel Alito: --trying to persuade the Court, you're representing the Court?
Sri Srinivasan: --We represent the sovereign interests of the United States.
Of course, in a case like this, the -- the -- we're submitting the dispute to the Judiciary for resolution, so in that sense, we -- I'm not going to stand here and tell you that I can dictate the -- that the Judiciary comes out in one direction or the other.
I certainly would like to be able to do that, but I don't think I can, in all fairness, do that.
Justice Samuel Alito: It seems very strange.
So in -- in a criminal case where it's the United States v.--
Smith, appearing before an Article III judge, the United States, the prosecutor is representing the court as well?
Sri Srinivasan: --Well, I think -- I guess what I would say is this: The United -- the United States -- the Executive Branch represents the sovereign interests of the United States before the Court.
It's not -- I think the point of this is that it's not that the Executive Branch is representing the Executive Branch alone.
The Executive Branch is representing the sovereign interests of the United States, and those interests would include the interests of the Congress that enacted the law, the interests of the President that signed it, and the interests of the Judiciary in pronouncing on what the law is.
And the course of action that the President chose to undertake here is in keeping with all of those considerations.
Justice Elena Kagan: Mr. Srinivasan, Chadha says what you said it said about what it means to be aggrieved--
Sri Srinivasan: Yes.
Justice Elena Kagan: --but Chadha also left open the Article III question.
Why did Chadha leave it open if it's the same thing?
Sri Srinivasan: I don't -- I don't know why Chadha didn't engage on it in particular.
I think part of it, Justice Kagan, is that the Court didn't have the methodology at that point in time that it does now.
don't know that it neatly divided between those questions in the same way.
So yes, it left the Article III question open, but I think the question of Article III injury necessarily follows from aggrievement and I haven't -- I haven't heard a persuasive argument to the contrary.
If we were aggrieved in the circumstances of Chadha, it seems to me it necessarily follows that we're injured.
We're injured in a couple of ways.
An act of Congress has been declared unconstitutional, which Chadha itself says constitutes aggrievement and therefore constitutes injury.
In this case also, we're required to pay a judgment--
Justice Antonin Scalia: Didn't Chadha -- didn't Chadha suggest that Congress could have standing in -- in Chadha?
Sri Srinivasan: --I'm sorry?
Justice Antonin Scalia: In Chadha, there was an argument that Congress had standing, because what was at issue in the case was precisely a prerogative of Congress to exercise the one-house or two-house veto.
Sri Srinivasan: There wasn't a -- there -- that was an issue in Chadha.
I don't know that that issue was joined, actually, Justice Scalia.
The Court did say at page 939 of its opinion that Congress is a proper party to defend the constitutionality of the Act and a proper petitioner, and I think that's the best language for the other side on this issue.
Chief Justice John G. Roberts: So you say we shouldn't be concerned about that part of Chadha because the issue wasn't joined there?
Sri Srinivasan: Well, I don't -- I don't read the--
Chief Justice John G. Roberts: But we should take Lovett as a binding precedent even though the issue wasn't addressed at all?
Sri Srinivasan: --I didn't -- to be -- to be fair or, as was suggested this morning, to be cricket, I -- I didn't mean to suggest that Lovett is binding precedent, Mr. Chief Justice.
What I'm saying is Lovett is a case in which this same scenario as happens here occurred.
That's my -- that's my point about Lovett.
Justice Sonia Sotomayor: All right.
Let's go to the BLAG issue.
Sri Srinivasan: So -- sure.
Justice Sonia Sotomayor: And the issue wasn't joined.
So what do you think we meant?
And I know Justice Scalia doesn't care what you think we meant.
Sri Srinivasan: Right.
Justice Sonia Sotomayor: But what is your reading of what that means, that Congress can--
Sri Srinivasan: --I think that--
Justice Sonia Sotomayor: --intervene in situations in which its interests are injured?
Sri Srinivasan: --Sure.
So there are two aspects of Chadha that are relevant on pages 939 and 940.
The second discussion at page 940, I think, deals with prudential considerations that this Court ought to take into account to make sure that it has a sufficient adverse presentation of the competing arguments before it.
And that's accounted for by an amicus type role, and I think that's what the Court had in mind in Chadha, because the two cases that are cited in support of that proposition were both cases in which there was an appointed amicus.
So that -- that deals with that aspect of Chadha.
The other aspect of Chadha is the sentence that I alluded to earlier.
And I guess I'm not -- I'm not going to tell you that that sentence doesn't bear on the issue at all, but I will say this: What's cited in that is 28 U.S.C. 1254.
So I think the point that was directly -- directly being made is that the House and Senate were parties for purposes of the statute and they were parties because they had intervened and so they had party status.
Justice Sonia Sotomayor: So are you accepting the amici's formulation that somehow the representative has to be of both houses and not just one?
Sri Srinivasan: No.
I guess my -- my point is a little bit different.
My point is that this was talking about whether they're a party for statutory purposes under 1254.
I don't read this to address the question of Article III standing.
On the question of Article III standing, I guess what I would say is this: Chadha at most, if it says anything about Article III standing -- and I don't know that it does with respect to the House or Senate -- at most what it would say was in the unique circumstances of that case, where you had a legislative veto that uniquely affected a congressional prerogative--
Justice Sonia Sotomayor: So you take the position that Congress--
Sri Srinivasan: --there might be standing in that situation.
Even that I don't want to concede, but--
Justice Sonia Sotomayor: --Well, I want to know what you're conceding.
Sri Srinivasan: --I'm conceding that at most--
Justice Sonia Sotomayor: Let's assume this very case.
Would -- who would ever have standing on behalf of Congress?
Or are you saying there's never standing?
Sri Srinivasan: --Well, there are two different cases.
This case is different, because this case doesn't involve the kind of unique congressional prerogative that was at issue in Chadha.
Chadha involved a legislative veto.
Here, if I could just finish this--
Chief Justice John G. Roberts: You can finish your sentence.
Sri Srinivasan: --this thought.
Thank you, Mr. Chief Justice.
Here, I don't think the interest that's being asserted is even in the same plane as the one that was asserted and found deficient in Raines v. Byrd.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE RESPONDENT BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES
Paul D. Clement: Thank you, Mr. Chief Justice, and may it please the Court:
This Court not only addressed the issue of the House's standing in Chadha; it held that the House is the proper party to defend the constitutionality of an Act of Congress when the executive agency charged with its enforcement agrees with plaintiff that the statute is unconstitutional.
Justice Sonia Sotomayor: Mr. Clement, Chadha was somewhat different because there was a unique House prerogative in question.
But how is this case any different than enforcing the general laws of the United States?
There's no unique House power granted by the legislation.
Paul D. Clement: Well, Justice Sotomayor--
Justice Sonia Sotomayor: It's a law of the United States and the person who defends it generally is the Solicitor -- Solicitor General.
Paul D. Clement: --Sure, generally, unless and until they stop defending it, at which point we submit--
Justice Sonia Sotomayor: Well, then, why shouldn't -- why shouldn't taxpayers have a right to come in?
And we say they don't.
Paul D. Clement: --Because the House is very -- in a very different position in a case like this and in Chadha from just the general taxpayer.
Now, in a case like Chadha, for example, you're right, it was the one-house veto, if you will, that was at issue.
But it would be a strange jurisprudence that says that the House has standing to come in and defend an unconstitutional one-house veto, but it doesn't have standing to come in and defend its core Article I prerogative, which is to pass statutes and have those statutes--
Justice Anthony Kennedy: Well, that -- that assumes the premise.
We didn't -- the House didn't know it was unconstitutional.
Paul D. Clement: --Well, with all due respect, Justice Kennedy, I think the House--
Justice Anthony Kennedy: --We are talking about ex ante, not ex post, what is standing at the outset?
And the House says this is constitutional.
Paul D. Clement: --Sure.
And there is a presumption that its acts are constitutional.
That presumption had real life here because when Congress was considering this statute it asked the Justice Department three times whether DOMA was constitutional, and three times the Justice Department told them that it was in fact constitutional.
So I think it's a fair assumption that they at least have standing to have that determination made by the courts, and this Court has held that in the context of State legislatures and the courts have--
Justice Anthony Kennedy: So you don't think that there is anything to the argument that in Chadha the House had its own unique institutional responsibilities and prerogatives at stake, either the one-house veto or the legislative veto?
Paul D. Clement: --Well, I would say two things.
Justice Anthony Kennedy: That's irrelevant?
Paul D. Clement: I don't think -- I don't think it's irrelevant.
I would say two things.
One is, I don't think there was anything particularized about the fact that it was the House that exercised the one-house veto, because the Court allowed the Senate to participate as well and the Senate's interest in that was really just the constitutionality of the legislation and perhaps the one-house veto going forward.
But what I would say is I just -- I would continue to resist the premise, which is that the House's prerogatives aren't at stake here.
The House's single most important prerogative, which is to pass legislation and have that legislation, if it's going to be repealed, only be repealed through a process where the House gets to fully participate.
Chief Justice John G. Roberts: What if you -- what if you disagree with -- the executive is defending one of your laws, if that's the way you insist on viewing it, and you don't like their arguments, you say, they are not making the best argument.
Is that a situation in which you have standing to intervene to defend the law in a different way than the executive?
Paul D. Clement: No, I would say we would not, Mr. Chief Justice.
I would say in that circumstance the House would have the prerogative to file an amicus brief if it wanted to, but that's because of a sound prudential reason, which is when the Executive is actually discharging its responsibility, its traditional obligation to defend an Act of Congress, if Congress comes in as a party it has the possibility of second-guessing the way that they are actually defending it.
But if the Executive is going to vacate the premises or, in a case like this, not just vacate the premises, but stay in court and attack the statute, you don't have that prudential concern.
And that's why--
Justice Elena Kagan: How about a couple of cases sort of in the middle of the Chief Justice's and this one?
So let's say that the Attorney General decides that a particular application of the statute is unconstitutional and decides to give up on that application.
Or even let's say the Attorney General decides that the application of the statute might be unconstitutional, so decides to interpret the statute narrowly in order to avoid that application.
Could Congress then come in?
Paul D. Clement: --Well, I think -- if in a particular case, which is obviously not this case, the Executive decides, we are not going to defend the statute as applied I think in that situation the House could come in.
I think as a matter of practice it probably wouldn't.
And it's not like the House and the Senate are very anxious to exercise this prerogative.
In the 30 years since the Chadha decision, there's only been 12 instances in which the -- in which the House has come in and intervened as a party.
And I think it's very important to recognize that whatever--
Justice Ruth Bader Ginsburg: Does that include the -- does that include the courts of appeals or just this Court?
Paul D. Clement: --That includes all courts, but excluding the DOMA cases.
So from the point of Chadha until the DOMA cases, there were a total of 12 cases where the House intervened as a party.
And I do think that particularly in the lower court cases, it's very important to understand that party status is critical.
I mean, in this case it doesn't make a huge differences if you are an amicus with argument time versus a party.
But in the district court that makes all the difference.
Only a party can take a deposition.
Justice Stephen G. Breyer: This is what -- we have always had the distinction between the public action and the private action.
A public action, which does not exist under the Federal Constitution, is to vindicate the interest in the law being enforced.
Now, when the government, State or Federal, in fact has the interest, a special interest in executing the law, here given to the President, and they can delegate that interest to Congress, if they did, which arguably they didn't do here.
But to say that any legislator has an interest on his own without that delegation to defend the law is to import in that context the public action into the Federal Government.
Now, that -- it hasn't been done, I don't think, ever.
I can see arguments for and against it, but I can't think of another instance where that's happened.
Paul D. Clement: Well, I would -- a couple of things, Justice Breyer.
I mean, I would point you to Chadha and I realize you can distinguish Chadha.
Justice Stephen G. Breyer: Chadha is really different because of course there is an interest in the legislature in defending a procedure of the legislature.
Now, that's -- that isn't tough.
But this is, because the only interest I can see here is the interest in the law being enforced.
Paul D. Clement: Well, if I--
Justice Stephen G. Breyer: And that's -- I'm afraid of opening that door.
Paul D. Clement: --Well, it's understandable.
mean, obviously nobody's suggesting, at least in the Legislative Branch, that this is a best practices situation.
Justice Stephen G. Breyer: No, no.
But think of another instance where that's happened, where in all of the 12 cases or whatever that what this Court has said, without any special delegation of the power of the State or Federal Government to execute the law, without any special delegation, a legislator simply has the power, which a private citizen wouldn't have, to bring a lawsuit as a party or defend as a party to vindicate the interest in the law being enforced, the law he has voted for?
Now I can imagine arguments on both side, so I'm asking you only, is there any case you can point me to which will help?
Paul D. Clement: I can point to you a couple of cases that will help but may not be a complete solution for some of the reasons you built into your question.
The cases I would point to help are Coleman v. Miller, Karcher v. May, and Arizonans for Official English.
And all of those -- I don't think Coleman involved any specific legislative authorization, but you can distinguish it, I suppose.
But in trying to distinguish it, keep in mind that this Court gave those 20 Senators not just standing to make the argument about the role of the lieutenant governor, but also gave them standing to make the separate argument, which is the only one this Court reached, because it was divided four to four on the lieutenant governor's role, the only issue that the Court reached is the issue whether prior ratification disabled them from subsequent legislation action, which is just a way of saying what they did was unconstitutional.
So I think Coleman is quite close.
Karcher, Arizonans against English, there was an authorization.
We would say H. Res.
5 is enough of authorization for these purposes.
Justice Sonia Sotomayor: Can you tell me where the authorization is here?
I know that there is a statute that gives the Senate specifically authorization to intervene and that there was consideration of extending that right to the House.
But the appointment of BLAG is strange to me, because it's not in a statute, it's in a House rule.
So where -- how does that constitute anything other than a private agreement among some Senators, the House leadership?
And where -- from where do they derive the right, the statutory right, to take on the power of representing the House in items outside of the House?
I know they control the procedures within the House, but that's a very different step from saying that they can decide who or to create standing in some way, prudential or otherwise, Article III or otherwise.
Paul D. Clement: Well, Justice Sotomayor, I can point you to two places.
One is the House rules that are pursuant to the rulemaking authority and approved by the institution.
They're approved in every Congress.
Justice Sonia Sotomayor: What other House Rule creates the power of the majority leaders to represent the House outside of the functions of the House?
Paul D. Clement: I'm not sure there is another one, but that's the sole purpose of Rule 2.8.
It creates the Office of the General Counsel--
Justice Sonia Sotomayor: This would be, I think, sort of unheard of, that--
Paul D. Clement: --I don't think so, Justice Sotomayor.
That's the same authority that gave the House, essentially a predecessor to it -- it would be the same authority that has had the House appear in litigation ever since Chadha.
In Chadha there was a vote that authorized it specifically, but we have that here in H. Res.
5, which is the second place I would point you.
Justice Sonia Sotomayor: --We don't even have a vote here.
Paul D. Clement: We do.
We do have a vote in H. Res.
At the beginning of this Congress in January, the House passed a resolution that passed, that authorized the BLAG to continue to represent the interests of the House in this particular litigation.
So I think if there was a question before H. Res.
5, there shouldn't be now.
I would like to--
Justice Anthony Kennedy: Under your view, would the Senate have the right to have standing to take the other side of this case, so we have the House on one side and the Senate on the other?
Paul D. Clement: --No, Justice Kennedy, they wouldn't have the standing to be on the other side of this case.
They would have standing to be on the same side of this case, and I think that's essentially what you had happen in the Chadha case.
Justice Anthony Kennedy: Well, why not?
They're concerned about the argument and you say that the House of Representatives standing alone can come into the court.
Why can't the Senate standing alone come into court and intervene on the other side?
Paul D. Clement: It -- because it wouldn't have the authority to do so under Chadha.
What -- Chadha makes the critical flipping of the switch that gives the House the ability to intervene as a party is that the Executive Branch declines to defend the statute.
So if the Senate wants to come in and basically take -- share argument time or something as an amicus, they can, but there's no need for them to participate as -- as a party.
And I would want to emphasize that in the lower courts, participation by a party is absolutely critical.
It doesn't make sense to have the party that wants to see the statute invalidated be in charge of the litigation in the district courts, because whether the statute is going to be invalidated is going to depend on what kind of record there is in the district court.
It'd be one thing, Justice Scalia, if all that happened is they entered consent judgment.
I suppose then the thing would end, and then in the long run, the Executive would be forced to do their job and actually defend these statutes--
Justice Samuel Alito: Then why is--
Paul D. Clement: --but if that's not going to happen--
Justice Samuel Alito: --Then why is it sufficient for one house to take the position that the statute is constitutional?
The enactment of legislation requires both houses, and usually the signature of the President.
Paul D. Clement: --Justice Alito, I think it makes perfect sense in this context, because every -- each individual house has a constitutional rule before a statute is repealed.
And so yes, it takes two of them to make the law.
But each of their's participation is necessary to repeal a law.
So if the Executive wants to go into court and effectively seek the judicial repeal of a law, it makes sense that one house can essentially vindicate its role in our constitutional scheme by saying, wait a minute, we passed that law; it can't be repealed without our participation.
Justice Samuel Alito: Well, if the law is passed by a bare majority of one of the houses, then each member of that -- of that house who was part of the majority has the same interest in defending its constitutionality.
Paul D. Clement: I don't think that's right after Raines, Justice Alito.
In Raines, this Court carefully distinguished between the situation of an individual legislator and the situation of one of the houses as a whole.
And it specifically said this might be a different case if we had that kind of vote.
And that's what you have here.
That's what you had in Chadha.
And again, I do think that -- I mean, the only alternatives here are really to say that the Executive absolutely must enforce these laws, and if they don't, I mean, because after all -- you know, I -- I really don't understand why it's -- if they're not going to -- if they've made a determination that the law is unconstitutional, why it makes any sense for them to continue to enforce the law and put executive officers in the position of doing something that the President has determined is unconstitutional.
I mean, think about the qualified immunity implications of that for a minute.
So that's problematic enough.
But if they're going to be able to do that and get anything more than a consent judgment, then the House is going to have to be able to play its role, and it's going to have to play the role of a party.
An amicus just doesn't get it done.
And I really think, in a sense, the Executive gives the game away by conceding that our participation as an amicus here is necessary to solve what would otherwise be a glaring adverseness problem.
Because once you recognize that we can participate as an amicus, you've essentially recognized that there's nothing inherently executive about coming in and defending the constitutionality of an act of Congress.
Or more to the point, there's nothing inherently unlegislative about coming in and making arguments in defense of the statute.
And if that's critical, absolutely necessary to ensure there's an adverse presentation of the issues, well, there's no reason the House should have to do that with one hand tied behind its back.
If its participation is necessary, it should participate as a full party.
And as I say, that's critically important in the lower courts so they can take depositions, build a factual record, and allow for a meaningful defense of the statute.
Because the alternative really puts the Executive Branch in an impossible position.
It's a conflict of interest.
They're the ones that are making litigation decisions to promote the defense of a statute they want to see invalidated.
And if you want to see the problems with their position, look at Joint Appendix page 437.
You will see the most anomalous motion to dismiss in the history of litigation: A motion to dismiss, filed by the United States, asking the district court not to dismiss the case.
I mean, that's what you get under their view of the world, and that doesn't serve as separation of powers.
Justice Anthony Kennedy: That -- that would give you intellectual whiplash.
I'm going to have to think about that.
Paul D. Clement: It -- it does.
And then -- you know -- and the last thing I'll say is, we saw in this case certain appeals were expedited, certain appeals weren't.
They did not serve the interest of defending the statute, they served the distinct interest of the Executive.
Chief Justice John G. Roberts: Thank you, counsel.
Ms. Jackson, you have 4 minutes remaining.
REBUTTAL ARGUMENT OF VICKI C. JACKSON ON BEHALF OF THE COURT-APPOINTED AMICUS CURIAE
Vicki C. Jackson: Thank you, Your Honor.
I have five points I'll try to get to.
Just very quickly, Justice Breyer, I only answered part of a question you asked me earlier, and I just want to say, the U.S. is asking this Court to tell it to pay money.
It's not asking for relief.
Justice Sotomayor, you asked me about how the issue could come up otherwise.
I don't think I had a chance to mention, private party litigation, employees against employers, there's an interpleader action right now pending that was cited in the brief of the 287 employers -- on page 32 at note 54 -- giving examples of how the issue of DOMA's constitutionality could arise in private litigation.
In addition, State and local government employees might have, for example, FMLA claims in which the issue could arise.
So I think that there are a number of ways in which the issue could arise.
On the question of what the purpose of 1252 could be if it wasn't to coincide with Article III injury that was raised by my -- my friend in his argument, I wonder whether the Court in Chadha wasn't saying something like this: 1252 was Congress's wish list.
It was like -- like a citizen suit provision, to be exercised only to the extent that Article III power was there.
That's a way to make sense out of what the Court is doing in the text and footnote there.
As to the question of BLAG, which has been very fully discussed already, I do want to say that after-the-fact authorization seems to me quite troubling and inconsistent with this Court's approach in Summers v. Earth Institute, and in the -- I think it was in the plurality in Lujan, where you -- you -- if a party has standing, they need to have it in the first court that they're in, either when it starts or certainly before judgment.
And the rule as Justice Sotomayor observed just doesn't seem to say anything about authority to litigate.
I think that in addition, the -- the big problem here is the injury being complained of is inconsistent with the separation of powers.
Bowsher and Buckley make very clear that once the litigation is enacted, Congress's authority to supervise it is at an end.
It goes over to the Executive Branch.
And whether the Executive Branch does it well or badly in the view of Congress, it's in its domain.
And separation of powers will not be meaningful if all it means is the Congress has to stay out unless it thinks that the President is doing it badly.
So I think Article II helps give shape to what kinds of injuries alleged by parts of Congress can be cognizable.
Finally, the three -- two or three cases cited by my colleague who last spoke: Coleman, Karcher and Arizona, all involved State level of government, where the Federal separation of powers doctrines articulated in cases like Bowsher and Buckley were not at issue.
Unless there are other questions, I will sit down.
Justice Samuel Alito: Well, could I ask you this question: On the question of the House resolution--
Vicki C. Jackson: --Yes, sir.
Justice Samuel Alito: --if -- if a house -- if one of the houses passes a resolution saying that a particular group was always authorized to represent us, do you think it's consistent with the separation of powers for us to examine whether that's a correct interpretation of the rules of that House of Congress?
Vicki C. Jackson: Yes, I do, Your Honor, because that resolution is not something operating only internally within the House.
It is having effect in the world of the Article III courts, which this Court, in proceedings in it, is in charge of.
Moreover, in the Smith case, the -- this Court said that when the Senate passed an after-the-fact interpretation of what a prior rule meant, notwithstanding the great respect given to the Senate's interpretation, this Court could reach and did reach an alternative interpretation of the meaning of the Senate rules, and I would urge this Court to do the same thing here.
Justice Stephen G. Breyer: Maybe I -- as long as you have a minute, I -- what did you think of Mr. Clement's argument this way, that -- that the execution -- can I--
Chief Justice John G. Roberts: Sure.
Justice Stephen G. Breyer: --to execute the laws is in Article II, but where the President doesn't in a particular law, under those circumstances, a member of the legislature, appropriately authorized, has the constitutional power -- a power that is different than the average person being interested in seeing that the law is carried out; they can represent the power to vindicate the interest in seeing that the law is executed.
And that's a special interest, existing only when the Executive declines to do so.
Vicki C. Jackson: Your Honor, I think that when the Executive declines to do so, it is exercising its Take Care Clause authority.
The Take Care Clause says that the Executive shall take care that the laws be faithfully executed.
I think the laws include the Constitution.
So I don't think the distinction offered by my colleague is -- is appropriate.
I think it would result in a significant incursion on the separation of powers between the legislature and the Executive Branch, and would bring this -- the Federal courts into more controversies that have characteristics of interbranch confrontation, in which this Court has traditionally been very cautious.
Chief Justice John G. Roberts: Ms. Jackson, before you sit down, I would like to note that you briefed and argued this case as amicus curiae at the invitation of the Court, and you have ably discharged the responsibility, for which you have the gratitude of the Court.
Vicki C. Jackson: Thank you, Your Honor.
Chief Justice John G. Roberts: Thank you.
We'll now take a very short break and turn to the merits.
I meant that we would take a break, not that -- we will continue argument in the case on the merits.
ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE RESPONDENT BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES
Paul D. Clement: Mr. Chief Justice, and may it please the Court:
The issue of same-sex marriage certainly implicates profound and deeply held views on both sides of the issue, but the legal question on the merits before this Court is actually quite narrow.
On the assumption that States have the constitutional option either to define marriage in traditional terms or to recognize same-sex marriages or to adopt a compromise like civil unions, does the Federal Government have the same flexibility or must the Federal Government simply borrow the terms in State law?
I would submit the basic principles of federalism suggest that as long as the Federal Government defines those terms solely for purposes of Federal law, that the Federal Government has the choice to adopt a constitutionally permissible definition or to borrow the terms of the statute.
Justice Ruth Bader Ginsburg: Mr. Clement, the problem is if we are totally for the States' decision that there is a marriage between two people, for the Federal Government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can't get leave; people -- if that set of attributes, one might well ask, what kind of marriage is this?
Paul D. Clement: And I think the answer to that, Justice Ginsburg, would be to say that that is a marriage under State law, and I think this Court's cases when it talks about the fundamental right to marriage, I take it to be talking about the State law status of marriage; and the question of what does that mean for purposes of Federal law has always been understood to be a different matter.
And that's been true certainly in a number of situations under a number of statutes, so it's simply not the case that as long as you are married under State law you absolutely are going to be treated as married--
Justice Ruth Bader Ginsburg: How about divorce?
That you can have a Federal notion of divorce, and that that doesn't relate to what the State statute is?
Paul D. Clement: --Well, we've never had that, Your Honor, and I think that there is a difference when it comes to divorce, because with divorce uniquely, you could have the -- possibility that somebody's married to two different people for purposes of State law and Federal law.
But with the basic question of even whether to recognize the marriage -- or probably the best way to put it is just whether the Federal law treats you as married for a particular purpose or not, there always have been differences between the Federal law treatment and the State law treatment.
The Federal treatment, for example, recognizes common law marriages in all States whereas a lot of States don't recognize common law marriages, but Federal law recognizes that for some purposes -- the Social Security Act, I think it's at page 4 of our brief.
Justice Sonia Sotomayor: But only if the State recognizes it.
Paul D. Clement: --No, I don't think that is true for purposes of that provision.
Justice Sonia Sotomayor: And so there is a common law, Federal common law definition?
Paul D. Clement: That's my understanding, that's -- as discussed--
Justice Sonia Sotomayor: I thought it was reverse, that if the State law recognized common law marriages, the Federal law--
Paul D. Clement: --My understanding is that there is a Federal -- that the Federal law recognizes in -- in the Social Security context even if it doesn't; and in all events, there are other situations -- immigration context, tax consequences.
For tax consequences, if you get a divorce every December, you know, for tax consequences, the State may well recognize that divorce.
The Federal Government has long said, look, we are not going to allow you get a divorce every December just to get remarried in January so you'll have a filing tax status that works for you that is more favorable to you.
So the Federal Government has always treated this somewhat distinctly; it always has its own efforts; and I do think for purposes of the federalism issue, it really matters that all DOMA does is take this term where it appears in Federal law and define it for purposes of Federal law.
It would obviously be a radically different case if Congress had, in 1996, decided to try to stop States from defining marriage in a particular way or dictate how they would decide it in that way.
Justice Anthony Kennedy: Well, it applies to over what, 1,100 Federal laws, I think we are saying.
So it's not -- it's -- it's -- I think there is quite a bit to your argument that if the tax deduction case, which is specific, whether or not if Congress has the power it can exercise it for the reason that it wants, that it likes some marriage it does like, I suppose it can do that.
But when it has 1,100 laws, which in our society means that the Federal Government is intertwined with the citizens' day-to-day life, you are at -- at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.
Paul D. Clement: Well, Justice Kennedy, two points.
First of all, the very fact that there are 1,100 provisions of Federal law that define the terms “ marriage ” and “ spouse ” goes a long way to showing that Federal law has not just stayed completely out of these issues.
It's gotten involved in them in a variety of contexts where there is an independent Federal power that supported that.
Now, the second thing is the fact that DOMA affects all 1,100 statutes at once is not really a sign of its irrationality.
It is a sign that what it is, and all it has ever purported to be, is a definitional provision.
And like every other provision in the Dictionary Act, what it does is it defines the term wherever it appears in Federal law in a consistent way.
And that was part and parcel of what Congress was trying to accomplish with DOMA in 1996.
Justice Anthony Kennedy: Well, but it's not really uniformity because it regulates only one aspect of marriage.
It doesn't regulate all of marriage.
Paul D. Clement: Well, that's true but I don't think that's a mark against it for federalism purposes, and it -- it addressed a particular issue at a point, remember in 1996, Congress is addressing this issue because they are thinking that the State of Hawaii through its judicial action is about to change the definition of marriage from a way that it had been defined in every jurisdiction in the United States.
And what that meant is that when Congress passed every one of the statutes affected by DOMA's definition, the Congress that was passing that statute had in mind the traditional definition.
And so Congress in 1996 at that point says, the States are about to experiment with changing this, but the one thing we know is all these Federal statutes were passed with the traditional definition in mind.
And if rational basis is the test, it has to be rational for Congress then to say, well, we are going to reaffirm what this word has always meant for purposes of Federal law.
Justice Samuel Alito: Suppose we look just at the estate tax provision that's at issue in this case, which provides specially favorable treatment to a married couple as opposed to any other individual or economic unit.
What was the purpose of that?
Was the purpose of that really to foster traditional marriage, or was Congress just looking for a convenient category to capture households that function as a unified economic unit?
Paul D. Clement: Well, I think for these purposes actually, Justice Alito, if you go back to the beginning of the estate tax deduction, what Congress was trying to do was trying to provide uniform treatment of taxpayers across jurisdictions, and if you look at the brief that Senator Hatch and some other Senators filed, they discussed this history, because what was happening in 1948 when this provision was initially put into Federal law was you had community property States and common law States, and actually there was much more favorable tax treatment if you were in a community law State than a common law State.
And Congress didn't want to have an artificial incentive for States to move from common law to community property; it wanted to treat citizens the same way no matter what State they were in.
So it said, we will give a uniform Federal deduction based on marriage, and I think what that shows is that when the Federal Government gets involved in the issue of marriage, it has a particularly acute interest in uniform treatment of people across State lines.
So Ms. Windsor wants to point to the unfairness of the differential treatment of treating two New York married couples differently, and of course for purposes of New York law that's exactly the right focus, but for purposes of Federal law it's much more rational for Congress to -- to say, and certainly a rational available choice, for Congress to say, we want to treat the same-sex couple in New York the same way as the committed same-sex couple in Oklahoma and treat them the same.
Or even more to the point for purposes--
Justice Sonia Sotomayor: --But that's begging the question, because you are treating the married couples differently.
Paul D. Clement: --Well--
Justice Sonia Sotomayor: You are saying that New York's married couples are different than Nebraska's.
Paul D. Clement: --But -- but the only way--
Justice Sonia Sotomayor: I picked that out of a hat.
But the point is that there is a difference.
Paul D. Clement: --But the -- the only way they are different is because of the way the State law treats them.
And just to be clear how -- you know, what this case is about, and how sort of anomalous the -- the treatment, the differential treatment in two States is, is this is not a case that is based on a marriage license issued directly by the State of New York after 2011 when New York recognized same-sex marriage.
This is -- the status of Ms. Windsor as married depends on New York's recognition of an Ontario marriage certificate issued in 2007.
Justice Stephen G. Breyer: You would say it would be the same thing if the State passed a law -- Congress passes a law which says, well, there's some States -- they all used to require 18 as the age of consent.
Now, a lot of them have gone to 17.
So if you're 17 when you get married, then no tax deduction, no medical, no nothing.
Or some States had a residence requirement of a year, some have six months, some have four months.
So Congress passes a law that says, well unless you're there for a year, no medical deduction, no tax thing, no benefits of any kind, that that would be perfectly constitutional.
It wouldn't be arbitrary, it wouldn't be random, it wouldn't be capricious.
Paul D. Clement: Well, I guess I would -- I would say two things.
I would say that the first question would be what's the relevant level of scrutiny and I assume the level of scrutiny for the things--
Justice Stephen G. Breyer: No, I just want your bottom line.
The bottom line here is we can imagine -- you know, I can make them up all day.
So can you -- differences between ----
Differences between States have nothing to do with anything, you know, residence requirements, whether you have a medical exam, whether -- we can think them up all day -- how old you are.
And Congress just passes a law which takes about, let's say, 30 percent of the people who are married in the United States and says no tax deduction, no this, no that, no medical -- medical benefits, none much these good things, none of them for about 20, 30 percent of all of the married people.
Can they do that?
Paul D. Clement: --Again, I think the right way to analyze it would be, you know, is -- is there any distinction drawn that implicates what level of scrutiny is implicated.
If the level of scrutiny is a rational basis, then my answer to you would be, yes, they can do that.
I mean, we'd have to talk about what the rational basis would be--
Justice Stephen G. Breyer: No, there isn't any.
I'm trying to think of examples, though I just can't imagine what it is.
Paul D. Clement: --Well, I -- I think the uniform treatment of individuals across State lines--
Justice Stephen G. Breyer: All right.
So you're saying uniform treatment's good enough no matter how odd it is, no matter how irrational.
There is nothing but uniformity.
We could take -- no matter.
Do you see what I'm -- where I'm going?
Paul D. Clement: --No, I see exactly where you're going, Justice Breyer.
Justice Stephen G. Breyer: All right.
Paul D. Clement: And -- and obviously, every one of those cases would have to be decided on its own.
But I do think there is a powerful interest when the Federal Government classifies people--
Justice Stephen G. Breyer: Yes, okay.
Paul D. Clement: --There's a powerful interest in treating--
Justice Stephen G. Breyer: Fine, but once -- the first part.
Every one of those cases has to be decided on its own, okay?
Now, what's special or on its own that distinguishes and thus makes rational, or whatever basis you're going to have here, treating the gay marriage differently?
Paul D. Clement: --Well, again, if we're -- if we're coming at this from the premise that the States have the option to choose, and then we come at this from the perspective that Congress is passing this not in a vacuum, they're passing this in 1996.
And what they're confronting in 1996 is the prospect that one State, through its judiciary, will adopt same-sex marriage and then by operation of the through full faith and credit law, that will apply to any -- any couple that wants to go there.
And the State that's thinking about doing this is Hawaii; it's a very nice place to go and get married.
And so Congress is worried that people are going to go there, go back to their home jurisdictions, insist on the recognition in their home jurisdictions of their same-sex marriage in Hawaii, and then the Federal Government will borrow that definition, and therefore, by the operation of one State's State judiciary, same-sex marriage is basically going to be recognized throughout the country.
And what Congress says is, wait a minute.
Let's take a timeout here.
This is a redefinition of an age-old institution.
Let's take a more cautious approach where every sovereign gets to do this for themselves.
And so Section 2 of DOMA says we're going to make sure that on full faith and credit principles that a decision of one State--
Justice Sonia Sotomayor: But what gives the Federal Government the right to be concerned at all at what the definition of marriage is?
Sort of going in a circle.
You're saying -- you're saying, we can create this special category -- men and women -- because the States have an interest in traditional marriage that they're trying to protect.
How do you get the Federal Government to have the right to create categories of that type based on an interest that's not there, but based on an interest that belongs to the States?
Paul D. Clement: --Well, at least two -- two responses to that, Justice Sotomayor.
First is that one interest that supports the Federal Government's definition of this term is whatever Federal interest justifies the underlying statute in which it appears.
So, in every one of these statutes that affected, by assumption, there's some Article I Section 8 authority--
Justice Sonia Sotomayor: So they can create a class they don't like -- here, homosexuals -- or a class that they consider is suspect in the marriage category, and they can create that class and decide benefits on that basis when they themselves have no interest in the actual institution of marriage as marriage.
The State's control that.
Paul D. Clement: --Just to clarify, Justice Sotomayor, I'm not suggesting that the Federal Government has any special authority to recognize traditional marriage.
So if -- the assumption is that nobody can do it.
If the States can't do it either, then the Federal Government can't do it.
So the Federal Government--
Justice Sonia Sotomayor: No, I'm -- I'm--
Paul D. Clement: --Okay.
So then the question assuming -- is--
Justice Sonia Sotomayor: --Assuming I assume the States can--
Paul D. Clement: --So then, if the States can--
Justice Sonia Sotomayor: --what creates the right--
Paul D. Clement: --the Federal Government has sort of two sets of authorities that give it sort of a legitimate interest to wade into this debate.
Now, one is whatever authority gives rise to the underlying statute.
The second and complementary authority is that, you know, the Federal Government recognizes that it's a big player in the world, that it has a lot of programs that might give States incentives to change the rules one way or another.
And the best way -- one way to stay out of the debate and let just the -- the States develop this and let the democratic process deal with this is to just say, look, we're going to stick with what we've always had, which is traditional definition.
We're not going to create a regime that gives people an incentive and point to Federal law and say, well, another reason you should have same-sex marriage is because then you'll get a State tax deduction.
They stayed out of it.
They've said, look, we're--
Justice Anthony Kennedy: But I -- I see an illogic in your argument.
I -- I hadn't thought of the relation between Section 2 and Section 3 in the way you just said.
You said, now Section 2 was in order to help the States.
Congress wanted to help the States.
But then Section 3, that Congress doesn't help the States which have come to the conclusion that gay marriage is lawful.
So that's inconsistent.
Paul D. Clement: --No, no.
They treat them -- which is to say they -- they are preserving, they are helping the States in the sense of having each sovereign make this decision for themselves.
Justice Anthony Kennedy: We're helping the States do -- if they do what we want them to, which is -- which is not consistent with the historic commitment of marriage and -- and of questions of -- of the rights of children to the State.
Paul D. Clement: With respect, Justice Kennedy, that's not right.
No State loses any benefits by recognizing same-sex marriage.
Things stay the same.
What they don't do is they don't sort of open up an additional class of beneficiaries under their State law for -- that get additional Federal benefits.
But things stay the same.
And that's why in this sense--
Justice Ruth Bader Ginsburg: They're not -- they're not a question of additional benefits.
I mean, they touch every aspect of life.
Your partner is sick.
I mean, it's pervasive.
It's not as though, well, there's this little Federal sphere and it's only a tax question.
It's -- it's -- as Justice Kennedy said, 1100 statutes, and it affects every area of life.
And so he was really diminishing what the State has said is marriage.
You're saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.
Paul D. Clement: --With respect, Justice Ginsburg, that's not what the Federal Government is saying.
The Federal Government is saying that within its own realm in Federal policies, where we assume that the Federal Government has the authority to define the terms that appear in their own statute, that in those areas, they are going to have their own definition.
Justice Elena Kagan: Mr. Clement, for the most part and historically, the only uniformity that the Federal Government has pursued is that it's uniformly recognized the marriages that are recognized by the State.
So, this was a real difference in the uniformity that the Federal Government was pursuing.
And it suggests that maybe something -- maybe Congress had something different in mind than uniformity.
So we have a whole series of cases which suggest the following: Which suggest that when Congress targets a group that is not everybody's favorite group in the world, that we look at those cases with some -- even if they're not suspect -- with some rigor to say, do we really think that Congress was doing this for uniformity reasons, or do we think that Congress's judgment was infected by dislike, by fear, by animus, and so forth?
I guess the question that this statute raises, this statute that does something that's really never been done before, is whether that sends up a pretty good red flag that that's what was going on.
Paul D. Clement: --A couple of responses, Justice Kagan.
First of all, I think I would take issue with the premise, first of all, that this is such an unusual Federal involvement on an issue like marriage.
If you look at historically, not only has the Federal Government defined marriage for its own purposes distinctly in the context of particular -- particular programs, it's also intervened in -- in other areas, including in-state prerogatives.
I mean, there's a reason that four state constitutions include a prohibition on polygamy.
It's because the Federal Congress insisted on them.
There is a reason that, in the wake of the Civil War and in Reconstruction, Congress specifically wanted to provide benefits for spouses of freed slaves who fought for the Union.
In order to do it, it essentially had to create state law marriages, because in the Confederacy, the slaves couldn't get married.
So they developed their own State -- essentially, a Federal, sort of, condition to define who was married under those laws.
So where there was the needs in the past to get involved, the Federal Government has got involved.
The other point I would make -- but I also eventually want to get around to the animus point -- but the other point I would make is: When you look at Congress doing something that is unusual, that deviates from the way they -- they have proceeded in the past, you have to ask, Well, was there good reason?
And in a sense, you have to understand that, in 1996, something's happening that is, in a sense, forcing Congress to choose between its historic practice of deferring to the States and its historic practice of preferring uniformity.
Up until 1996, it essentially has it both ways: Every State has the traditional definition.
Congress knows that's the definition that's embedded in every Federal law.
So that's fine.
We can defer.
Justice Elena Kagan: Well, is what happened in 1996 -- and I'm going to quote from the House Report here -- is that
"Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality. "
Is that what happened in 1996?
Paul D. Clement: --Does the House Report say that?
Of course, the House Report says that.
And if that's enough to invalidate the statute, then you should invalidate the statute.
But that has never been your approach, especially under rational basis or even rational basis-plus, if that is what you are suggesting.
This Court, even when it's to find more heightened scrutiny, the O'Brien case we cite, it suggests, Look, we are not going to strike down a statute just because a couple of legislators may have had an improper motive.
We're going to look, and under rational basis, we look: Is there any rational basis for the statute?
And so, sure, the House Report says some things that we are not -- we've never invoked in trying to defend the statute.
But the House Report says other things, like Congress was trying to promote democratic self-governance.
And in a situation where an unelected State judiciary in Hawaii is on the verge of deciding this highly contentious, highly divisive issue for everybody, for the States -- for the other States and for the Federal Government by borrowing principle, it makes sense for Congress--
Justice Anthony Kennedy: Well, but your statute applies also to States where the voters have decided it.
Paul D. Clement: --That's true.
I -- but again, I don't know that that fact alone makes it irrational.
And I suppose if that's what you think--
Justice Anthony Kennedy: Just to be clear, I think your answer is fair and rational.
We've switched now from Federal power to rationality.
There is -- there is a difference.
We're talking -- I think we are assuming now that there is Federal power and asking about the degree of scrutiny that applies to it.
Or are we going back to whether there is a Federal power?
They are -- they are intertwined.
Paul D. Clement: --I think -- I think there is so clearly is a Federal power because DOMA doesn't define any term that appears anywhere other than in a Federal statute that we assume that there is Federal power for.
And if there is not Federal power for the statutes in which these terms appear, that is a problem independent of DOMA, but it is not a DOMA problem.
So I will assume we have Federal power.
Then the question is--
Justice Anthony Kennedy: Well, I think -- I think it is a DOMA problem.
The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.
Paul D. Clement: --And it doesn't have the authority to regulate marriages, as such, but that's not what DOMA does.
DOMA provides certain -- DOMA defines a term as it appears in Federal statutes, many of those Federal statutes provide benefits.
Some of those Federal statutes provide burdens.
Some of those Federal statutes provide disclosure obligations.
It appears in lots of places, and if any one of--
Justice Samuel Alito: Well, Congress could have achieved exactly what it achieved under Section 3 by excising the term “ married ” from the United States Code and replacing it with something more neutral.
It could have said “ certified domestic units ”, and then defined this in exactly the way that Section 3 -- exactly the way DOMA defines “ marriage ”.
Would that make a difference?
In that instance, the Federal Government wouldn't be purporting to say who is married and who is not married; it would be saying who is entitled to various Federal benefits and burdens based on a Federal definition.
Paul D. Clement: --That would make no difference, Justice Alito.
It does -- the hypothetical helpfully demonstrates, though, that when the Federal Government is defining this term as it appears in the Federal Code, it is not regulating marriage as such.
And it is important to recognize that people that are married in their State, based on either the legislative acts or by judicial recognition, remain married for purposes of State law.
Justice Stephen G. Breyer: When you started, you started by, I think, agreeing -- maybe not -- that uniformity in and of itself with nothing else is not likely to prove sufficient, at least if it's rational basis-plus.
And -- and why?
Because we can think of weird categories that are uniform.
So you say, Look at it on the merits.
Now that's where you are beginning to get.
But so far, what I've heard is, Well, looking at it on the merits, there is certainly a lot of harms.
And on the plus side what there is, is, one, We don't want courts deciding this.
But of course, as was just pointed out, in some States it's not courts, it's the voters.
Then you say, Ah, but we want -- there are too many courts deciding it.
Now, is -- too many courts might decide it.
Now what else is there?
want to -- I want to be able to have a list, you know, of really specific things that you are saying justify this particular effort to achieve uniformity.
And I want to be sure I'm not missing any.
And so far, I've got those two I mentioned.
Justice Antonin Scalia: I didn't understand that courts were so central to your position.
I -- I thought you didn't want the voters in one State to dictate to other States any more than you would want the courts in one State to dictate to other States.
Paul D. Clement: Well, I -- I think that's true, Justice Scalia.
The point about the courts, though, is -- I mean, it's particularly relevant here.
Justice Stephen G. Breyer: That means courts -- the courts, they do dictate in respect to time.
They dictate in respect to age.
They dictate in respect to all kinds of things.
And what I'm looking for is:
What, in your opinion, is special about this homosexual marriage that would justify this, other than this kind of pure uniformity, if there is such a thing?
Paul D. Clement: Well, let me -- let me just get on record that -- to take issue with one of the premises of this, which is we are at somehow rational basis-plus land, because I would suggest strongly that three levels of scrutiny are enough.
But in all events, if you are thinking about the justifications that defend this statute, that justify the statute, they are obviously in the brief.
But it's uniformity -- but it's not -- it's not just that Congress picked this, you know, We need a uniform term, let's pick this out of the air.
They picked the traditional definition that they knew reflected the underlying judgments of every Federal statute on the books at that point.
They knew it was the definition that had been tried in every jurisdiction in the United States and hadn't been tried anywhere until 2004.
And then, of course, it was, as they correctly predicted, a judicial decision.
And in this context, in particular, they are thinking about an individual -- I mean, this couple goes to Ontario, they get the -- they get a marriage certificate.
A couple could -- from Oklahoma, could have gotten -- gone to Ontario and gotten a marriage certificate that same day and gone back to Oklahoma.
And from the Federal law perspective, there is certainly a rational basis in treating those two couples the same way.
If I could reserve my time.
Chief Justice John G. Roberts: Thank you, Mr. Clement.
ORAL ARGUMENT OF DONALD B. VERRILLI, JR. ON BEHALF OF THE PETITIONER SUPPORTING AFFIRMANCE
Donald B. Verrilli Jr: Mr. Chief Justice, and may it please the Court:
The equal protection analysis in this case should focus on two fundamental points: First, what does Section 3 do; and second, to whom does Section 3 do it?
What Section 3 does is exclude from an array of Federal benefits lawfully married couples.
That means that the spouse of a soldier killed in the line of duty cannot receive the dignity and solace of an official notification of next of kin.
Chief Justice John G. Roberts: Suppose your -- you agree that Congress could go the other way, right?
Congress could pass a new law today that says, We will give Federal benefits.
When we say “ marriage ” in Federal law, we mean committed same-sex couples as well, and that could apply across the board.
Or do you think that they couldn't do that?
Donald B. Verrilli Jr: We think that wouldn't raise an equal protection problem like this statute does, Mr. Chief Justice.
Chief Justice John G. Roberts: Well, no, my point is: It wouldn't -- you don't think it would raise a federalism problem either, do you?
Donald B. Verrilli Jr: I don't think it would raise a federalism problem.
Chief Justice John G. Roberts: Okay.
Donald B. Verrilli Jr: And I -- but the key for the -- for the -- our purposes is that, in addition to denying these fundamental important -- fundamentally important benefits, is who they are being denied to.
Chief Justice John G. Roberts: So just to be clear, you don't think there is a federalism problem with what Congress has done in DOMA?
Donald B. Verrilli Jr: We -- no, we don't, Mr. Chief Justice.
Chief Justice John G. Roberts: Okay.
Donald B. Verrilli Jr: The question is: What is the constitutionality for equal protection purposes, and because it's unconstitutional and it's embedded into numerous Federal statutes, those statutes will have an unconstitutional effect.
But it's the equal protection violation from the perspective of the United States that--
Justice Anthony Kennedy: You think Congress can use its powers to supercede the traditional authority and prerogative of the States to regulate marriage in all respects?
Congress could have a uniform definition of marriage that includes age, consanguinity, etc.
Donald B. Verrilli Jr: --No, I'm not saying that, Your Honor.
I think if Congress passed such a statute, then we would have to consider how to defend it.
But that's not--
Justice Anthony Kennedy: Well, but then there is a federalism interest at stake here, and I thought you told the Chief Justice there was not.
Donald B. Verrilli Jr: --Well, with respect to Section 3 of DOMA, the problem is an equal protection problem from the point of view of the United States.
Justice Elena Kagan: Yes, but, General, surely the question of what the Federal interests are and whether those Federal interests should take account of the historic State prerogatives in this area is relevant to the equal protection inquiry?
Donald B. Verrilli Jr: It's central to the inquiry, Justice Kagan.
I completely agree with that point.
Chief Justice John G. Roberts: Oh, so it would be central to the inquiry if Congress went the other way, too?
Donald B. Verrilli Jr: Well, the difference is what Section 3 does is impose this exclusion from Federal benefits on a class that has undeniably been subject to a history of terrible discrimination on the basis of--
Chief Justice John G. Roberts: I understand that.
That's your equal protection argument.
It's not very responsive to my concern I'm trying to get an answer to.
You don't think federalism concerns come into play at all in this, right?
Donald B. Verrilli Jr: --Well, I think -- I just want to clarify.
The equal protection question would be different than the other circumstance.
That's a matter of--
Chief Justice John G. Roberts: I know the equal protection argument.
Donald B. Verrilli Jr: --But the federalism concerns come into play in the following way: In that Mr. Clement has made the argument that, look, whatever States can do in terms of recognizing marriage or not recognizing marriage, the Federal Government has commensurate authority to do or not do.
We don't think that's right as a matter of our equal protection analysis because we don't think the Federal Government should be thought of as the 51st state.
States, as we told the Court, yesterday we believe heightened scrutiny ought to apply even to the State decisions--
Justice Anthony Kennedy: But you're -- you are insisting that we get to a very fundamental question about equal protection, but we don't do that unless we assume the law is valid otherwise to begin with.
And we are asking is it valid otherwise.
What is the Federal interest in enacting this statute and is it a valid Federal interest assuming, before we get to the equal protection analysis?
Donald B. Verrilli Jr: --Yeah.
We think whatever the outer bounds of the Federal Government's authority, and there certainly are outer bounds, would be, apart from the equal protection violation, we don't think that Section 3 apart from equal protection analysis raises a federalism problem.
But we do think the federalism analysis does play into the equal protection analysis because the Federal -- the Federal Government is not the 51st state for purposes of -- of the interests that Mr.--
Clement has identified on behalf of BLAG.
Justice Samuel Alito: Can I take you back to the example that you began with, where a member of the military is injured.
So let's say three soldiers are injured and they are all in same-sex relationships, and in each instance the other partner in this relationship wants to visit the soldier in a hospital.
First is a spouse in a State that allows same-sex marriage, the second is a domestic partner in a State that an allows that but not same-sex marriage, the third is in an equally committed loving relationship in a State that doesn't involve either.
Now, your argument is that under Federal law the first would be admitted, should be admitted, but the other two would be kept out?
Donald B. Verrilli Jr: The question in the case, Justice Alito is whether Congress has a sufficiently persuasive justification for the exclusion that it has imposed.
And it -- and it does not.
The only way in which -- that BLAG's arguments for the constitutionality of this statute have any prospect of being upheld is if the Court adopts the minimal rationality standard of Lee Optical.
Justice Samuel Alito: Let me take you back to the example.
Your -- your position seems to me, yes, one gets in, two stay out, even though your legal arguments would lead to the conclusion that they all should be treated the same.
Donald B. Verrilli Jr: Well, the question before the Court is whether the exclusion that DOMA imposes violates equal protection, and it does violate equal protection because you can't treat this as though it were just a distinction between optometrists and ophthalmologists, as the Lee Optical case did.
This is a different kind of a situation because the discrimination here is being visited on a group that has historically been subject to terrible discrimination on the basis of personal--
Justice Antonin Scalia: But that's -- that's the same in the example that we just gave you, that discrimination would have been visited on the same group, and you say there it's okay.
Donald B. Verrilli Jr: --No, I didn't say that.
said it would be subject to equal protection analysis certainly, and there might be a problem.
Justice Antonin Scalia: So you think that's bad as well, that all three of those has to be treated the same, despite State law about marriage.
Donald B. Verrilli Jr: They have to be analyzed under equal protections principles, but whatever is true about the other situations, in the situation in which the couple is lawfully married for purposes of State law and the exclusion is a result of DOMA itself, the exclusion has to be justified under this Court's equal protection analysis, and DOMA won't do it.
Justice Sonia Sotomayor: General Verrilli, I have a question.
You think, I think from your brief yesterday and today, that on some level sexual orientation should be looked on an intermediate standard of scrutiny?
Donald B. Verrilli Jr: Yes, Your Honor.
Justice Sonia Sotomayor: All right, heightened in some way.
Going back to the Chief's question about a law that was passed recognizing common law heterosexual -- homosexual marriages.
I think even under your theory that might be suspect because -- that law might be suspect under equal protection, because once we say sexual orientation is suspect, it would be suspect whether it's homosexual or heterosexual.
The law favors homosexuals; it would be suspect because it's based on sexual orientation.
Donald B. Verrilli Jr: You would have -- you would have to impose the heightened scrutiny equal protection analysis, sure.
Justice Sonia Sotomayor: Exactly.
And so when we decided race was a suspect class, people who are not blacks have received--
Donald B. Verrilli Jr: Yes, that's certainly--
Justice Sonia Sotomayor: --strict scrutiny on whether the use of race as a class, whether they are white or a black, is justified by a compelling interest.
Donald B. Verrilli Jr: --That is certainly true, Your Honor.
If I could turn to the interest that BLAG has actually identified as supporting this statute, I think there are -- there are -- I think that you can see what the problem is here.
Now, this statute is not called the Federal Uniform Marriage Benefits Act; it's called the Defense of Marriage Act.
And the reason for that is because the statute is not directed at uniformity in the administration of Federal benefits.
All -- there is two equally uniform systems, the system of respecting the State choices and the system of -- that BLAG is advocating here.
And what BLAG's got to do in order to satisfy equal protection scrutiny is justify the choice between one and the other, and the difference between the two is that the Section 3 choice is a choice that -- Section 3 choice is a choice that discriminates.
So it's not simply a matter sufficient to say, well, uniformity is enough.
Section 3 discriminates.
Chief Justice John G. Roberts: So as soon as one State adopted same sex marriage, the definition of marriage throughout the Federal code had to change?
Because there is no doubt that up until that point every time Congress said “ marriage ” they understood they were acting under the traditional definition of marriage.
Donald B. Verrilli Jr: Well, I don't know, Mr. Chief Justice, why you wouldn't assume that what Congress was doing when it enacted a statute, particularly a statute that had the word “ marriage ” in it, was assuming that the normal rule that applies in the vast majority of circumstances of deference to the State definition of marriage would be the operative principle.
Chief Justice John G. Roberts: So you don't think that when Congress said “ marriage ” in every one of these provisions that they had in mind same-sex marriages?
Donald B. Verrilli Jr: No, but they may well have had in mind deferring to the normal State definition of marriage, whatever it is.
Not that they were making the specific choice that my friend suggested they were.
But whatever is the case, when Congress enacted DOMA that choice of exclusion has to be justified under appropriate equal protection principles.
So the issue of uniformity just doesn't get you there, because there is no uniformity advantage to Section 3 of DOMA as opposed to the traditional rule.
The issue of administration doesn't get you there.
I mean, at a very basic level administrative concerns ought not be an important enough interest to justify this kind of a discrimination under the Equal Protection Clause.
But even if you look at them, there are no genuine administrative benefits to DOMA.
If anything, Section 3 of DOMA makes Federal administration more difficult, because now the Federal Government has to look behind valid state marriage licenses and see whether they are about State marriages that are out of compliance with DOMA.
It's an additional administrative burden.
So there is no -- there is no administrative -- there is no administrative advantage to be gained here by what -- by what Congress sought to achieve.
And the fundamental reality of it is, and I think the House report makes this glaringly clear, is that DOMA was not enacted for any purpose of uniformity, administration, caution, pausing, any of that.
It was enacted to exclude same-sex married, lawfully married couples from Federal benefit regimes based on a conclusion that was driven by moral disapproval.
It is quite clear in black and white in the pages of the House report which we cite on page 38 of our brief--
Chief Justice John G. Roberts: So that was the view of the 84 Senators who voted in favor of it and the President who signed it?
They were motivated by animus?
Donald B. Verrilli Jr: --No, Mr. Chief Justice.
We quoted our -- we quoted the Garrett concurrence in our brief, and I think there is a lot of wisdom there, that it may well not have been animus or hostility.
It may well have been what Garrett described as the simple want of careful reflection or an instinctive response to a class of people or a group of people who we perceive as alien or other.
But whatever the explanation, whether it's animus, whether it's that -- more subtle, more unthinking, more reflective kind of discrimination, Section 3 is discrimination.
And I think it's time for the Court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from Federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law.
This is discrimination in its most very basic aspect, and the House Report, whether -- and I certainly would not suggest that it was universally motivated by something other than goodwill -- but the reality is that it was an expression of moral disapproval of exactly the kind that this Court said in Lawrence would not justify the law that was struck down there.
Justice Sonia Sotomayor: General, your bottom line is, it's an equal protection violation for the Federal Government, and all States as well?
Donald B. Verrilli Jr: Yes, Your Honor, and that's the -- we took the position we took yesterday with respect to marriage -- the analysis--
Justice Sonia Sotomayor: Is there any argument you can make to limit this to this case, vis-à-vis the Federal Government and not the States?
Donald B. Verrilli Jr: --Well, as we said yesterday, we think it's an open question with respect to State recognition of marriage, and they may well be able to advance interests -- they may be able to advance it.
I guess I shouldn't say “ may well ”, because I do think it would be difficult, as we said yesterday.
They may be able to advance interests that would satisfy heightened scrutiny and justify non-recognition--
Justice Stephen G. Breyer: Then yet -- but here--
Donald B. Verrilli Jr: --But -- but here, the Federal Government's not in the same position because as BLAG concedes, the Federal Government at the most can act at the margins in influencing these decisions about marriage and child rearing at the State level.
And the Second Circuit and the First Circuit both concluded that there's no connection at all, and that's of course because Section 3 doesn't make it any more likely that unmarried men and women in States -- that -- unmarried men and women who confront an unplanned pregnancy are going to get married.
And -- and elimination of Section 3 wouldn't make it any less likely that unmarried men and women are going to get married.
It doesn't have any effect at all.
It doesn't have any connection at all.
So it's not at the margins.
There's no interest at all at this -- in DOMA in promoting--
Justice Stephen G. Breyer: --Or if there's no interest -- I mean, I'm back where we were yesterday.
It seems to me, forgetting your -- your preferable argument, it's a violation of equal protection everywhere.
Well, if it is, then all States have to have something like pacts.
And if they have to have something like pacts, then you say then they also have to allow marriage.
So then are you not arguing they all have to allow marriage?
And then you say no.
So with that point--
Donald B. Verrilli Jr: --But our point here, Justice Breyer, is that whatever -- may I finish?
Whatever the issue is, with -- whatever the outcome is with respect to States and marriage, that the Federal Government's interest in advancing those justifications through Section 3 of DOMA is so attenuated that two Federal courts of appeals have seen it as non-existent, and it cannot justify Section 3.
Chief Justice John G. Roberts: Thank you, General.
ORAL ARGUMENT OF ROBERTA A. KAPLAN ON BEHALF OF THE RESPONDENT WINDSOR
Roberta A. Kaplan: Mr. Chief Justice, and may it please the Court:
I'd like to focus on why DOMA fails even under rationality review.
Because of DOMA, many thousands of people who are legally married under the laws of nine sovereign States and the District of Columbia are being treated as unmarried by the Federal Government solely because they are gay.
These couples are being treated as unmarried with respect to programs that affect family stability, such as the Family Leave Act, referred to by Justice Ginsburg.
These couples are being treated as unmarried for purposes of Federal conflict of interest rules, election laws and anti-nepotism and judicial recusal statutes.
And my client was treated as unmarried when her spouse passed away, so that she had to pay $363,000 in estate taxes on the property that they had accumulated during their 44 years together.
Chief Justice John G. Roberts: Could I ask you the same question I asked the Solicitor General?
Do you think there would be a problem if Congress went the other way, the federalism problem?
Obviously, you don't think there's an equal protection problem--
Roberta A. Kaplan: Right.
Chief Justice John G. Roberts: --but a federalism issue, Congress said, we're going to recognize same-sex couples -- committed same-sex couples -- even if the State doesn't, for purposes of Federal law?
Roberta A. Kaplan: Obviously, with respect to marriage, the Federal Government has always used the State definitions.
And I think what you're -- Mr. Chief Justice, what you're proposing is to extend -- the Federal Government extend additional benefits to gay couples in States that do not allow marriage, to equalize the system.
Chief Justice John G. Roberts: I just am asking whether you think Congress has the power to interfere with the -- to not adopt the State definition if they're extending benefits.
Do they have that authority?
Roberta A. Kaplan: I think the question under the Equal Protection Clause is what -- is what the distinction is.
Chief Justice John G. Roberts: No, no.
I know that.
You're following the lead of the Solicitor General and returning to the Equal Protection Clause every time I ask a federalism question.
Is there any problem under federalism principles?
Roberta A. Kaplan: With the Federal Government--
Chief Justice John G. Roberts: With Congress passing a law saying, we are going to adopt a different definition of marriage than those States that don't recognize same-sex marriage.
We don't care whether you do as a matter of State law, when it comes to Federal benefits, same-sex marriage will be recognized.
Roberta A. Kaplan: --It has certainly been argued in this case by others that -- whether or not that's in any way the powers of the Federal Government.
For the reasons Justice Kagan mentioned, we think the federalism principles go forward a novelty question.
I think whether or not the Federal Government could have its own definition of marriage for all purposes would be a very closely argued question.
Justice Antonin Scalia: I don't understand your answer.
Is your answer yes or no?
Is there a federalism problem with that, or isn't there a federalism problem?
Roberta A. Kaplan: I -- I think the Federal Government could extend benefits to gay couples to equalize things on a programmatic basis to make things more equal.
Whether the Federal Government can have its own definition of marriage, I think, would be -- there's a -- it'd be very closely argued whether that's outside the enumerated approach.
Justice Antonin Scalia: Well, it's just -- all these statutes use the term “ marriage ”, and the Federal Government says in all these statutes when it says marriage, it includes same-sex couples, whether the State acknowledges them to be married or not.
Roberta A. Kaplan: But that -- I don't know if that would work, because they wouldn't--
Justice Antonin Scalia: What do you mean whether or not it would work?
I don't care if it works.
Does it -- does it create a federalism problem?
Roberta A. Kaplan: --The power to marry people is a power that rests with the States.
Justice Antonin Scalia: Yes.
Roberta A. Kaplan: The Federal Government doesn't issue marriage licenses.
It never has.
Justice Antonin Scalia: Well, it's not doing that, it's just saying for purposes -- just what it's doing here.
It says, for purposes of all these Federal statutes, when we say marriage, we mean -- instead of saying we mean heterosexual marriage, we mean, whenever we use it, heterosexual and homosexual marriage.
If that's what it says, can it do that?
Roberta A. Kaplan: As long as the people were validly married under State law, and met the requirements of State law to get married--
Justice Antonin Scalia: No, no, no, no.
Roberta A. Kaplan: --I'm not sure that the Federal Government -- this answers your question, Justice Scalia -- I'm not sure the Federal Government can create a new Federal marriage that would be some kind of marriage that States don't permit.
Justice Samuel Alito: Well, let me get to the question I asked Mr. Clement.
It just gets rid of the word “ marriage ”, takes it out of the U.S. Code completely.
Substitutes something else, and defines it as same-sex -- to include same-sex couples.
Surely it could do that.
Roberta A. Kaplan: Yes.
That would not be based on the State's--
Justice Samuel Alito: So it's just the word “ marriage ”?
And it's just the fact that they use this term “ marriage ”?
Roberta A. Kaplan: --Well, that's what the Federal Government has always chosen to do.
And that's the way the Federal law is structured, and it's always been structured for 200 years based on the State police power to define who's married.
The Federal Government I presume could decide to change that if it wanted, and somehow, it would be very strange for all 1,100 laws, but for certain programs -- you have different requirements other than marriage, and that would be constitutional or unconstitutional depending on the distinction.
Justice Samuel Alito: But if the estate tax follows State law, would not that create an equal protection problem similar to the one that exists here?
Suppose there were a dispute about the -- the State of residence of your client and her partner or spouse.
Was it New York, was it some other State where same-sex marriage would not have been recognized?
And suppose there was -- the State court said the State of residence is a State where it's not recognized.
Would -- would you not have essentially the same equal protection argument there that you have now?
Roberta A. Kaplan: Well, let me -- let me answer that question very clearly.
Our position is only with respect to the nine States -- and I think there are two others that recognize these marriages.
So if my client -- if a New York couple today marries and moves to North Carolina, one of which has a constitutional amendment, a State constitutional amendment -- and one of the spouses dies, they would not -- and estate taxes determine where the person dies, they would not be entitled to the deduction.
That is not our claim here.
Moreover, Justice Alito, in connection with a whole host of Federal litigation, there has been Federal litigation for hundreds of years with respect to the residency of where people live or don't live, or whether they are divorced or not divorced throughout the Federal system.
And the Federal Government has always handled that and has never before -- and we believe this is why it's unconstitutional -- separated out a class of married gay couples solely because they were gay.
Justice Samuel Alito: Just -- if I could follow up with one -- one question.
What if the -- the hypothetical surviving spouse, partner in North Carolina, brought an equal protection argument, saying that there is no -- it is unconstitutional to treat me differently because I am a resident of North Carolina rather than a resident of New York.
What would be -- would that be discrimination on the basis of sexual orientation?
What would be the level of scrutiny?
Would it survive?
Roberta A. Kaplan: That would be certainly a different case.
It'd be more similar to the case I think you heard yesterday than the case that we have today.
We certainly believe that sexual-orientation discrimination should get heightened scrutiny.
If it doesn't get heightened scrutiny, obviously, it'd be rational basis, and the question would be what the State interests were in not allowing couples, for example, in North Carolina who are gay to get married.
No one has identified in this case, and I don't think we've heard it in the argument from my friend, any legitimate difference between married gay couples on the one hand and straight married couples on the other that can possibly explain the sweeping, undifferentiated and categorical discrimination of DOMA, Section 3 of DOMA.
And no one has identified any legitimate Federal interest that is being served by Congress's decision, for the first time in our nation's history to undermine the determinations of the sovereign States with respect to eligibility for marriage.
I would respectfully contend that this is because there is none.
Rather, as the title of the statute makes clear, DOMA was enacted to defend against the marriages of gay people.
This discriminatory purpose was rooted in moral disapproval as Justice Kagan pointed out.
Justice Stephen G. Breyer: What -- what do you think of his -- the argument that I heard was, to put the other side, at least one part of it as I understand it said: Look, the Federal Government needs a uniform rule.
There has been this uniform one man -- one woman rule for several hundred years or whatever, and there's a revolution going on in the States.
We either adopt the resolution -- the revolution or push it along a little, or we stay out of it.
And I think Mr. Clement was saying, well, we've decided to stay out of it--
Roberta A. Kaplan: I don't--
Justice Stephen G. Breyer: --and the way to stay out of it is to go with the traditional thing.
I mean, that -- that's an argument.
So your answer to that argument is what?
Roberta A. Kaplan: --I think it's an incorrect argument, Justice Breyer, for the--
Justice Stephen G. Breyer: I understand you do; I'd like to know the reason.
Roberta A. Kaplan: --Of course.
Congress did not stay out of it.
Section 3 of DOMA is not staying out of it.
Section 3 of DOMA is stopping the recognition by the Federal Government of couples who are already married, solely based on their sexual orientation, and what it's doing is undermining, as you can see in the briefs of the States of New York and others, it's undermining the policy decisions made by those States that have permitted gay couples to marry.
States that have already resolved the cultural, the political, the moral -- whatever other controversies, they're resolved in those States.
And by fencing those couples off, couples who are already married, and treating them as unmarried for purposes of Federal law, you're not -- you're not taking it one step at a time, you're not promoting caution, you're putting a stop button on it, and you're having discrimination for the first time in our country's history against a class of married couples.
Chief Justice John G. Roberts: Is the--
Justice Sonia Sotomayor: Now, the -- the discriminations are not the sexual orientation, but on a class of marriage; is that what you're--
Roberta A. Kaplan: It's a class of married couples who are gay.
Justice Sonia Sotomayor: --So I pose the same question I posed to the General to you.
Do you think there's a difference between that discrimination and -- and the discrimination of States who say homosexuals can't get married?
Roberta A. Kaplan: I think that it's -- they're different cases.
I think when you have couples who are gay who are already married, you have to distinguish between those classes.
Again, the Federal Government doesn't give marriage licenses, States do, and whatever the issues would be in those States would be what interest the States have, as opposed to here, what interest -- and we think there is none -- the Federal Government has.
There is little doubt that the answer to the question of why Congress singled out gay people's marriages for disrespect through DOMA.
The answer can't be uniformity as we've discussed.
It can't be cost savings, because you still have to explain then why the cost savings is being wrought at the expense of married couples who are gay; and it can't be any of the State interests that weren't discussed, but questions of family law in parenting and marriage are done by the States, not by the Federal Government.
The only -- the only conclusion that can be drawn is what was in the House Report, which is moral disapproval of gay people, which the Congress thought was permissible in 1996 because it relied on the Court's Bowers decision, which this Court has said was wrong, not only at the time it was overruled in Lawrence, but was wrong when it was decided.
Chief Justice John G. Roberts: --So 84 Senators -- it's the same question I asked before; 84 Senators based their vote on moral disapproval of gay people?
Roberta A. Kaplan: No, I think -- I think what is true, Mr. Chief Justice, is that times can blind, and that back in 1996 people did not have the understanding that they have today, that there is no distinction, there is no constitutionally permissible distinction--
Chief Justice John G. Roberts: Well, does that mean -- times can blind.
Does that mean they did not base their votes on moral disapproval?
Roberta A. Kaplan: --No; some clearly did.
I think it was based on an understanding that gay -- an incorrect understanding that gay couples were fundamentally different than straight couples, an understanding that I don't think exists today and that's the sense I'm using that times can blind.
I think there was -- we all can understand that people have moved on this, and now understand that there is no such distinction.
So I'm not saying it was animus or bigotry, I think it was based on a misunderstanding on gay people and their--
Justice Antonin Scalia: --Why -- why are you so confident in that -- in that judgment?
How many -- how many States permit gay -- gay couples to marry?
Roberta A. Kaplan: --Today?
9, Your Honor.
Justice Antonin Scalia: 9.
And -- and so there has been this sea change between now and 1996.
Roberta A. Kaplan: I think with respect to the understanding of gay people and their relationships there has been a sea change, Your Honor.
Justice Ruth Bader Ginsburg: How many States have civil unions now?
Roberta A. Kaplan: I believe -- that was discussed in the arguments, 8 or 9, I believe.
Justice Ruth Bader Ginsburg: And how many had it in 1996?
Roberta A. Kaplan: I -- yes, it was much, much fewer at the time.
I don't have that number, Justice Ginsburg; I apologize.
Chief Justice John G. Roberts: I suppose the sea change has a lot to do with the political force and effectiveness of people representing, supporting your side of the case?
Roberta A. Kaplan: I disagree with that, Mr. Chief Justice, I think the sea change has to do, just as discussed was Bowers and Lawrence, was an understanding that there is no difference -- there was fundamental difference that could justify this kind of categorical discrimination between gay couples and straight couples.
Chief Justice John G. Roberts: You don't doubt that the lobby supporting the enactment of same sex-marriage laws in different States is politically powerful, do you?
Roberta A. Kaplan: With respect to that category, that categorization of the term for purposes of heightened scrutiny, I would, Your Honor.
Chief Justice John G. Roberts: Really?
Roberta A. Kaplan: --Yes.
Chief Justice John G. Roberts: As far as I can tell, political figures are falling over themselves to endorse your side of the case.
Roberta A. Kaplan: The fact of the matter is, Mr. Chief Justice, is that no other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have.
And only two of those referenda have ever lost.
One was in Arizona; it then passed a couple years later.
One was in Minnesota where they already have a statute on the books that prohibits marriages between gay people.
So I don't think -- and until 1990 gay people were not allowed to enter this country.
So I don't think that the political power of gay people today could possibly be seen within that framework, and certainly is analogous -- I think gay people are far weaker than the women were at the time of Frontiero.
Chief Justice John G. Roberts: Well, but you just referred to a sea change in people's understandings and values from 1996, when DOMA was enacted, and I'm just trying to see where that comes from, if not from the political effectiveness of -- of groups on your side of the case.
Roberta A. Kaplan: To flip the language of the House Report, Mr. Chief Justice, I think it comes from a moral understanding today that gay people are no different, and that gay married couples' relationships are not significantly different from the relationships of straight married couples.
I don't think--
Chief Justice John G. Roberts: I understand that.
I am just trying to see how -- where that that moral understanding came from, if not the political effectiveness of a particular group.
Roberta A. Kaplan: --I -- I think it came -- is, again is very similar to the, what you saw between Bowers and Lawrence.
I think it came to a societal understanding.
I don't believe that societal understanding came strictly through political power; and I don't think that gay people today have political power as that -- this Court has used that term with -- in connection with the heightened scrutiny analysis.
Chief Justice John G. Roberts: Thank you, Ms. Kaplan.
Mr. Clement, you have 3 minutes remaining.
REBUTTAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE RESPONDENT BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES
Paul D. Clement: Thank you, Mr. Chief Justice, just three points in rebuttal.
First of all, I was not surprised to hear the Solicitor General concede that there is no unique federalism problem with DOMA, because in the Gill litigation in the First Circuit, the State of Massachusetts -- the Commonwealth of Massachusetts invoked the Tenth Amendment, and on that issue the United States continued to defend DOMA because there is no unique federalism problem with it, as the Chief Justice's question suggested.
If 10 years from now there are only 9 States left and Congress wants to adopt a uniform Federal law solely for Federal law purposes to going the other way, it is fully entitled to do that.
It has the power to do that.
I would say also the Federal Government has conceded in this litigation that there is a rational basis for this statute, something else to keep in mind.
I would also say that this provision is not so unique.
The very next provision in the Dictionary Act--
Justice Ruth Bader Ginsburg: Rational basis, Mr. Clement -- is a problem in your briefing.
You seem to say and you repeat it today that there is three tiers, and if you get into rational basis then it's anything goes.
But the history of this Court is, in the very first gender discrimination case, Reed v. Reed, the Court did something it had never done in the history of the country under rational basis.
There was no intermediate tier then.
It was rational basis.
Paul D. Clement: --Well--
Justice Ruth Bader Ginsburg: And yet the Court said this is rank discrimination and it failed.
Paul D. Clement: --And, Justice Ginsburg, applying rational basis to DOMA, I think that there are many rational bases that support it.
And the Solicitor General says, well, you know, the United States is not the 51st State to be sure, but the Federal Government has interests in uniformity that no other entity has.
And we heard today that there's a problem; when somebody moves from New York to North Carolina, they can lose their benefits.
The Federal Government uniquely, unlike the 50 States, can say, well, that doesn't make any sense, we are going to have the same rule.
We don't want somebody, if they are going to be transferred in the military from West Point to Fort Sill in Oklahoma, to resist the transfer because they are going to lose some benefits.
It makes sense to have a uniform Federal rule for the Federal Government.
It is not so anomalous that the term “ marriage ” is defined in the U.S. Code.
The very next provision of the Dictionary Act defines “ child ”.
These terms, although they are the primary province of State governments, do appear in multiple Federal statutes and it's a Federal role to define those terms.
The last point I would simply make is in thinking about animus, think about the fact that Congress asked the Justice Department three times about the constitutionality of the statute.
That's not what you do when you are motivated by animus.
The first two times they got back the answer it was constitutional.
The third time, they asked again in the wake of Romer, and they got the same answer: It's constitutional.
Now the Solicitor General wants to say:
Well, it was want of careful reflection?
Well, where do we get careful reflection in our system?
Generally, careful reflection comes in the democratic process.
The democratic process requires people to persuade people.
The reason there has been a sea change is a combination of political power, as defined by this Court's cases as getting the attention of lawmakers; certainly they have that.
But it's also persuasion.
That's what the democratic process requires.
You have to persuade somebody you're right.
You don't label them a bigot.
You don't label them as motivated by animus.
You persuade them you are right.
That's going on across the country.
Colorado, the State that brought you Amendment 2, has just recognized civil unions.
Maine, that was pointed to in the record in this case as being evidence of the persistence of discrimination because they voted down a statewide referendum, the next election cycle it came out the other way.
And the Federal Congress is not immune.
They repealed “ Don't Ask, Don't Tell ”.
Allow the democratic process to continue.
Thank you, Your Honor.
Chief Justice John G. Roberts: Thank you, counsel, counsel.
The case is submitted.
Justice Antonin Scalia: As you've heard I've filed one of the dissenting opinions.
There are two parts to the majority's opinion.
The first explaining why this Court has jurisdiction to decide the question and the second, deciding it.
Both of them are in my view wrong and the error in both springs from the same diseased root, an exalted notion of the role of this Court in American society.
In finding jurisdiction to pronounce upon the constitutionality of DOMA, the majority invokes what it calls this Court's “Primary role” in determining the constitution's meaning.
The constitution assigns us no such primary role.
Indeed it does not assign us the role of determining the constitution's meaning at all.
We perform that task accidentally as it were in the execution of what is our assigned task, namely just as the other two coequal branches perform the task of interpreting the constitution in the execution of their assigned roles.
Our assigned role, as Article III says, is to resolve disputes, cases and controversies between two parties.
Where resolution of the case depends on the constitutionality and hence the validity of a particular law, it becomes and only then does it become as Chief Justice Marshall wrote, surely the province of this Court to say what the law is.
The power of the Court is increased enormously and becomes indeed primary among the three branches when our ability to expound upon the Constitution is uncoupled from our duty to resolve live controversies.
To confirm that that is what has happened here, one need only read the concluding sentence of the brief for the government, for the party appealing from the judgment below.
That lessons reads, for the foregoing reasons, the judgment of the Court of Appeals should be affirmed, but of course that is precisely what the respondent, the supposedly opposing party wants us to do.
There is no dispute for us to resolve.
One could spend many fruitless afternoons ransacking our library for any other petitioner's brief seeking an affirmance of the judgment against it.
The majority claims that it is enough to enable our jurisdiction that “Adversarial presentation of the issues is assured by the participation of amici curiae prepared to defend with vigor the other side of the issue.
That is truly a revolution in our jurisprudence and one as I have said that aggrandizes this Court.
Having gotten jurisdiction wrong, the majority gets the merits wrong as well and for the same reason of self aggrandizement.
As I described at length in my dissent, it is difficult to pin down the precise technical legal basis for the majority's conclusion of unconstitutionality, but whatever hook it is hung on, the majority opinion makes clear that what causes DOMA to be unconstitutional is the fact that it is motivated by “the bare desire to harm” couples in same-sex marriages.
The majority says the supporters of this act acted with malice, with “the purpose,” all of the following are quotes, “The purpose to disparage and to injury same-sex couples.
It says that the motivation for DOMA was to demean, to impose inequality, to impose a stigma, to deny people equal dignity, to brand gay people as unworthy and to humiliate their children.”
Bear in mind that the object of this terrible condemnation is not some benighted state legislature and governor, but are respected coordinate branches that Congress and the presidency of the United States.
Laying such a charge against them should require the most extraordinary evidence and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute.
The majority's opinion does the opposite, affirmatively concealing from the reader, never mentioning the arguments that exist in its justification.
I imagine that this is because it has harder to maintain the illusion of the act's supporters as unhinged members of wild-eyed lynch mob when one first describes their views as they see them.
In my view, a perfectly valid justification for the statute is contained in its title, the Defensive Marriage Act.
Society has the right, it has always had the right to define and defend that institution and favoring man-woman marriage no more demeans and humiliates other sexual relationships than favoring our constitution demeans and humiliates the governmental systems of other countries.
But apart from that more fundamental point, there are other non-malevolent justifications that support this statute.
I will mention only two.
First, DOMA avoids difficult choice of law issues that will now arise absent a uniform federal definition of marriage.
Imagine a pair of women who marry in Albany and then moved to Alabama, which does not recognize as valid any marriage of parties of the same sex.
When the couple files their next federal tax return, maybe a joint one, which state's law controls for federal law purposes, the state of celebration which recognizes the marriage or their state of domicile which does not?
Are these questions to be answered as a matter of federal common law or perhaps by borrowing a state's choice of law rules?
If so, which state?
And what about states where the status of an out of state same-sex marriage is an unsettled question under local law?
DOMA avoided all this uncertainty specifying which marriages would be recognized for federal purposes.
Second, DOMA preserves the intended effects of prior legislation against then unforeseen changes in circumstance.
When Congress provided for example that a special estate tax exemption would exist for spouses, this exemption reached only opposite sex spouses.
Those being the only sort that were recognized in any state at the time of DOMA's passage.
When it became clear that -- when it became clear that changes in state law might one day alter that balance, DOMA's definitional section was enacted to ensure that state level experimentation did not automatically alter the basic operation of federal law unless and until Congress made the further judgment to do so on its own.
Congress has hardly demonstrated itself unwilling to make such further revising judgments upon due deliberation consider the Don't Ask, Don't Tell Repeal Act of 2010.
But in the majority's judgment, any resistance to its holding is beyond the pail of reasoned disagreement.
To question its invalidation of the statute is to act.
The majority is sure with the purpose to disparage, injure, degrade, demean and humiliate our fellow human beings, our fellow citizens who are homosexual.
It is one thing for a society to elect change.
It is another for a court of law to impose change by judging those who oppose it, hostis humani generis, enemies of the human race.
The penultimate sentence of the majority's opinion is a naked declaration that, “This opinion and its holding are confined to those couples joined in same-sex marriages made lawful by the state.”
In other words, today's opinion does not say anything about whether same-sex marriages must be made lawful.
It takes real cheek for today's majority as it is going out the door to leave us with that comforting assurance when what has preceeded is a lengthy lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress' hateful moral judgment against it.
By formally declaring anyone opposed to same-sex marriage as an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.
Henceforth, those challenges will lead with this Court's declaration that there is “no legitimate purpose” served by such a law and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the personhood and dignity of same-sex couples.
The result will be a judicial distortion of our society's debate over marriage.
That debate is in no need of this Court's clumsy help.
Few public controversies touch an institution so central to the lives of many and few inspire such attended passion by good people on all sides.
Few public controversies will ever demonstrate so vividly the beauty of what our framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight, a system of government that permits us to rule ourselves.
Since DOMA's passage, citizens on both sides of the question have seen victories and they have seen defeats.
There have been plebiscites, legislation, persuasion and loud voices, in other words, democracy.
Victories in some states, for example, North Carolina for the traditional definition of marriage have been offset by victories in other states, for example, Maryland for same-sex marriage.
Even in a single state such as Maine, the question has come out differently on different occasions.
In the majority's telling, however, this story is black and white, hate your neighbor or come along with us.
The truth is more complicated.
It is hard to admit that one's political opponents are not monsters especially in a struggle like this one.
And the challenge in the end proves more than today's Court can handle, too bad.
A reminder that disagreement over something so fundamental as marriage can still be settled democratically rather than by judicial fiat would have been a fit task for what an earlier times was called a judicial temperament.
We might have covered ourselves with honor today by promising all sides of this debate that it was theirs to settle and that we would respect their resolution.
We might have let the people decide, but that the majority will not do.
Some will rejoice in today's decision and some will despair at it.
That is the nature of a controversy that matters so much to so many, but the Court has cheated both sides, robbing the winners of an honest victory and the losers of the peace that comes from a fair defeat.
We oath both of them better.
Chief Justice John G. Roberts: In case 12-307, United States verus Windsor, Justice Kennedy has the opinion of the Court.
Justice Anthony Kennedy: Edith Windsor and Thea Spyer were married in a lawful ceremony in Ontario, Canada in 2007.
They returned to their home in New York City.
Their same-sex marriage is recognized as lawful under New York law.
When Spyer died in 2009, she left her entire estate to Windsor.
Windsor sought to claim the federal estate tax exemption for surviving spouses.
She was barred from doing so, however, by a federal law, the Defense of Marriage Act or DOMA.
Section 3 of DOMA excludes the same-sex partner from the definition of spouse as that term is used in federal statutes.
Section 3 does not expressly forbid states from permitting same-sex marriages or civil unions or providing state benefits to residents in that status.
But Section 3's comprehensive definition of marriage controls over 1,000 federal laws in which marital status is addressed including the estate tax exemption law of spouses.
Windsor paid the estate tax.
She then filed a suit for a refund.
The basis for refund claim is that Section 3 of DOMA, depriving her of spousal status, is unconstitutional.
While the refund suit was pending, the Attorney General of the United States notified the Speaker of the House of Representatives that the Department of Justice would no longer defend the constitutionality of Section 3.
The Bipartisan Legal Advisory Group of the House of Representatives, as BLAG, Bipartisan Legal Advisory Group voted to intervene in the litigation to defend the law.
The District Court and the Court of Appeals for the Second Circuit ruled that Section 3 is unconstitutional and ordered the United States to pay Windsor a refund.
The first issue to be addressed in the case that is here is whether a justiciable case or controversy still remains once the executive branch decides it no longer will defend the statute.
Today, the court concludes that a controversy does remain so there is jurisdiction to review the District Court ruling and the ruling of the Court of Appeals.
The United States retains a stake in the dispute.
The refund still is not been paid.
There will be a legal injury to the government if the refund is ordered or legal injury to the taxpayer if it's not, that the executive may welcome a constitutional ruling invalidating the statute does not eliminate the injury.
The government has standing here.
The Court need not decide whether BLAG has independent standing.
The capable defense of the law by BLAG in this Court does ensure that there is and was a full argument on the merits.
This case is of immediate importance to the federal government and to hundred of thousands of persons.
So the Court's conclusion that this case maybe heard on the merits does not imply that no difficulties would ensue if the executive were to decline to defend statute in a more ordinary case.
As there is jurisdiction, the substantive issue of the validity of DOMA's Section 3 must be addressed.
In recent years, the limitation of lawful marriage to heterosexual couples, a limitation which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other states as an unjust exclusion.
These states have decided that same-sex couple should have the right to marry and so live with pride in themselves and in their union, in a status of equality with all other married persons.
State laws defining and regulating marriage must respect the constitutional rights of persons, but subject to those constitutional guarantees.
Regulation of domestic relations is around that has long been recognized as a virtually exclusive province of the states and the recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens.
Against this background of lawful same-sex marriage in some states, the design, purpose, and effect of DOMA should be considered in determining whether it is valid under the Constitution.
Section 3 of DOMA rejects the long established preset that the incidents, benefits, and obligations of marriages are uniform for all married couples within each state.
Limited federal laws that define the meaning of marriage in order to further federal policy can be constitutional, but DOMA has a far greater reach.
Its operation is directed to a class of persons that the laws of 12 states have sought to protect.
It is unnecessary, however, to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.
A different constitutional principle does control.
When the State of New York used its historic and essential authority to define the marital relation to include same-sex couples, the state's role and the state's power in making a decision enhanced the recognition, dignity, and protection of the class of married same-sex couples in their own community.
The federal government uses the state defined class for the opposite purpose, to impose restrictions and disabilities.
What the State of New York treats as alike, the federal law deems unlike.
It does so by a federal law designed to injure the same class the state seeks to protect.
In doing so, the federal law violates basic Due Process and Equal Protection principles.
The avowed purpose and practical effect of the law or to impose a disadvantage, a separate status and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states.
The history of DOMA's enactment in its own text demonstrate that interference with the equal dignity of the same-sex marriages, the dignity conferred by the states in the exercise of their sovereign power was more than an incidental effect of the federal statute, it was its essence.
The stated purpose of the law was to promote an interest in protecting the traditional moral teachings reflected in heterosexual only marriage laws, where there any doubt of this far-reaching purpose, the title of the act confirms at the defense of marriage.
In short, the act's demonstrated purpose is to ensure that if any state decides to recognize same-sex marriages, those unions will be treated as second class marriages for purposes of federal law.
By creating two contradictory marriage regimes within the same state, Section 3 of DOMA forces same-sex couples to live as married for the purpose of state law, but unmarried for the purpose of federal law.
This diminishes the stability and predictability of basic personal relations the state has found it proper to acknowledge and protect.
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 marriage as less respected than others, Section 3 of DOMA is in violation of the Fifth Amendment.
This opinion and its holding are confined to those lawful marriages.
The judgment of the Court of Appeals for the Second Circuit is affirmed.
The Chief Justice has filed a dissenting opinion.
Justice Scalia has filed a dissenting opinion in which Justice Thomas joins and in which the Chief Justice joins in part.
Justice Alito has filed a dissenting opinion in which Justice Thomas joins in part.