Below is Scalia's dissent. I have some parts
highlighted and will have additional comment at the end.
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, concrete2 UNITED STATES v.
WINDSOR
SCALIA, J., dissenting
“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 every- where “primary” in its
role.This image of the Court would have been
unrecognizable to those who wrote and ratified our national charter.
Theyknew well the dangers of “primary” power, and so createdbranches of
government that would be “perfectly coordinate 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. Rossitered. 1961) (J. Madison). The
people did this to protect
Cite as: 570 U. S. ____ (2013)
3
SCALIA, J.,
dissenting
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
4
UNITED STATES v.
WINDSOR
SCALIA, J., dissenting
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 havesaid, some questions of law will
never be presented to thisCourt, 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 Bran- deis 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 authoritybegins 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 wascured 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 surelynot be redressed by the action that
it, as a litigant, asks usto 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
Cite as: 570 U. S. ____ (2013)
5
SCALIA, J.,
dissenting
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
—————— 1For an even more advanced scavenger
hunt, one might search the annals of Anglo-American law for another “Motion to
Dismiss” like theone 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 itasked for,
the United States promptly appealed.
6 UNITED STATES v. WINDSOR
SCALIA,
J., dissenting
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
Arti- cle 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-
——————
2 There the Justice Department’s refusal to
defend the legislation was 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
apoint 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.Cite as: 570 U. S. ____ (2013)
7
SCALIA, J.,
dissenting
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
pas-sage of our opinion seems to be addressing that initialstanding 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 ArticleIII 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 socarefully quotes, ante, at 7—and yet no Article III controversy
may be before the court. Article III requires not justa plaintiff (or appellant)
who has standing to complainbut 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, asthe majority puts it, “the
United States retains a stake
8 UNITED STATES v. WINDSOR
SCALIA, J.,
dissenting
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,
98–101 (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 bythis one.
The
authorities the majority cites fall miles short ofsupporting 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 judgmentin 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 ofclass 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,
Cite as: 570 U. S. ____ (2013)
9
SCALIA, J., dissenting
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
clearat 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 referwas the discretion to
deny an appeal even when a livecontroversy exists—not the discretion to grant
one when it does not. The majority can cite no case in which thisCourt
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 en-
forcing an unconstitutional law, suit will of course lie; but if, in that suit,
the Executive admits the unconstitution- ality 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 hebelieved it unconstitutional. He could have
equally chosen(more appropriately, some would say) neither to enforce
10
UNITED STATES v. WINDSOR
SCALIA, J., dissenting
nor to defend the
statute he believed to be unconstitutional, see Presidential Authority to
Decline to Execute Un- constitutional 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
11 Cite as: 570 U. S. ____ (2013)
SCALIA, J.,
dissenting
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, andfor 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
12 UNITED
STATES v. WINDSOR
SCALIA, J., dissenting
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
—————— 3 JUSTICE ALITO attempts to
limit his argument by claiming that Congress is injured (and can therefore
appeal) when its statute is heldunconstitutional without Presidential defense,
but is not injured whenits statute is held unconstitutional despite Presidential
defense. I do not understand that line. The injury to Congress is the same
whetherthe President has defended the statute or not. And if the injury
isthreatened, why should Congress not be able to participate in the suitfrom 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 enforceit without opining on its constitutionality?
If it is the inoperativenessthat 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.
Cite as: 570 U. S. ____ (2013)
13
SCALIA, J., dissenting
& 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 hith- erto
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]
14 UNITED STATES v.
WINDSOR
SCALIA, J., dissenting
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.15 Cite as: 570 U. S. ____ (2013)
SCALIA, J.,
dissenting
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” be- cause “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
—————— 4Such 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, 28 Stat. 108
(“The constitution [of Utah]” must provide “perfect toleration of religious
sentiment,” “Provided, That polygamous or plural marriages are forever
prohibited”).
16 UNITED STATES v. WINDSOR
SCALIA, J.,
dissenting
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-protectionopinion, it is a confusing one. The opinion does not resolve and
indeed does not even mention what had been the
—————— 5Since the Equal
Protection Clause technically applies only againstthe States, see U. S. Const.,
Amdt. 14, Bolling and Moreno, dealing with federal action, relied upon “the
equal protection component of theDue Process Clause of the Fifth Amendment,”
Moreno, 413 U. S., at
533.
17 Cite as: 570 U. S. ____
(2013)
SCALIA, J., dissenting
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 andthe 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, 567–570 (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
reason- ably 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,”
18 UNITED STATES v. WINDSOR
SCALIA, J.,
dissenting
Washington v. Glucksberg, 521 U. S. 702, 720–721 (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
whichDOMA 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 awhile 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 legis
19
Cite as: 570 U. S. ____
(2013)
SCALIA, J., dissenting
lators’ 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 Fed- eral 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
20 UNITED STATES v. WINDSOR
SCALIA, J.,
dissenting
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 instate 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, 124 Stat. 3515.
The Court mentions none of
this. Instead, it accuses the Congress that enacted this law and the President
whosigned it of something much worse than, for example,having acted in excess of
enumerated federal powers—or
21 Cite as: 570 U. S. ____ (2013)
SCALIA,
J., dissenting
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 calledthe 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 todefend 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
22 UNITED STATES v.
WINDSOR
SCALIA, J., dissenting
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 arglebargle one chooses
to follow, is that DOMA is motivated by “ ‘bare . . . desire to
harm’”
Cite as: 570 U. S. ____ (2013)
23
SCALIA, J.,
dissenting
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
moraland 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 questionmakes it even
more difficult for the children to understand the integrity and closeness of
their own familyand its concord with other families in their commu- nity and in
their daily lives.”
24 UNITED STATES v. WINDSOR
SCALIA, J.,
dissenting
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 arm swell 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 aninstitution 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 Courtpawns 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
25
Cite as: 570 U. S. ____ (2013)
SCALIA, J., dissenting
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 politicalopponents are not monsters,
especially in a struggle likethis 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 marriagecan 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
—————— 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 Election Tabulations (Question 1).
26
UNITED STATES v. WINDSOR
SCALIA, J., dissenting
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.
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