March 27, 2013

Justice Ginsburg's idea of "two kinds of marriage; the full marriage, and then this sort of skim milk marriage."

Here's the audio and transcript for today's oral argument in United States v. Windsor, challenging part of the federal Defense of Marriage Act. I've listened to the whole 2-hour argument and I'm going to pull out a few things in separate posts. The first hour is about whether there is standing — a technical but extremely interesting and difficult issue.

At the beginning of the second hour, Paul Clement is defending DOMA. He states his point clearly: Congress has power to define marriage for the purpose of all the many federal programs that have long relied on a marriage classification, and even though it has long treated couples as married when they are married according to state law, it had the "flexibility" to exclude same-sex marriages when some states switched from the traditional definition of marriage. The states still control the definition of marriage, in this view, and all Congress did was define the scope of the coverage of the federal programs.

The first Justice to break in is Ruth Bader Ginsburg, who seems prepared with her own succinct argument:
Mr. Clement, the problem is if we are totally for it would totally thwart 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... one might well ask, what kind of marriage is this?
(The strikeout shows where I corrected the transcript, based on the audio.)

Ginsburg returns to this idea later in the argument, after Clement asserts that the states don't "los[e] any benefits" — they are merely blocked from "open[ing] up an additional class of beneficiaries."
JUSTICE GINSBURG: They're not -- they're not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. 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 you would really [be] 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.
It's an interesting puzzle. What is a marriage? Is it the bundle of benefits you receive? Marriage is seen as something left to the states in American federalism, but to say that is to ignore the immensity of what the federal government does, much of it hinging on this marriage classification that refers to state law. You really do have much less of a marriage if you don't get all those federal things, but these federal programs all rest on an enumerated power — taxing, spending, etc. — and why wouldn't the feds, in designing any given program have, within that power, the power to delineate who qualifies?

I'm only talking about whether Congress has an enumerated power, not whether this exercise of that power violates the equal protection right, which is also part of this case. And obviously, I'm not talking about the things government does not even attempt to do with marriage — which is to determine whose love relationships are "full" in an emotional and spiritual way.

57 comments:

wyo sis said...

If I'm getting the message right the next position the government might take is the elimination of all marriage benefits. They'll take in a lot more in taxes if they do.

MadisonMan said...

The kind of comparison a Dairy State Citizen can appreciate. But the implication is that skim milk is somehow inferior, and I don't think that holds water. We get skim milk in bottles from LW Dairy in Ixonia, and it's really the very best skim milk you will ever taste. It's just as flavorful as the 2% milk from Trader Joe's.

LW's chocolate milk (made from whole milk) is the best chocolate milk you will ever taste.

SMGalbraith said...

Married couples receive benefits that single people don't. From the federal government and from states. And married couples with children receive benefits that married couples without children don't receive.

Does that make single people or married couples without children less "good" or less a citizen than married ones? States give benefits that Washington doesn't. And vice versa.

The federal government doles out benefits to all sorts of people. And denies them to others. By race, gender, ethnicity, income, marital status, disability, et cetera. It favors some groups over others.

I can't believe that Justice Ginsburg see this as unconstitutional.

Balfegor said...

I'm only talking about whether Congress has an enumerated power, not whether this exercise of that power violates the equal protection right, which is also part of this case.

On the one hand, this is just exercise of Congress's grotesquely swollen power to tax and to spend, without reference to the traditionally enumerated powers. I suppose -- particularly given the Obamacare decision re: Medicare expansion -- there must be some limits, though. The amount of money/benefits involved (flowing to the individuals, if not the states proper) might create a states rights problem. But at the same time, I think you have to look to the conditions at the time DOMA was enacted, when -- to my knowledge -- no states extended any recognition or benefits to same-sex marriages. Unlike the Obamacare medicare expansion, which attempted to use the spending power to coerce states into changing their current medicare programs, DOMA merely mirrored state law at the time of enactment, no? In that sense, it seems less objectionable. On the other hand, DOMA was clearly implemented because of concern about how to handle the situation where different states had different marriage systems, and the states did not want to have to recognise each others' marriage systems. So in that sense, channelling federal benefits could be seen as an attempt to forestall and anticipated change, kind of putting it in the same impermissibly coercive space as the Obamacare medicare expansion?

ricpic said...

The progressive death cult has no interest in children, our future, and therefore is spitting mad that the married are "advantaged" over the death cult's issueless ideal couple, Bruce and Steve.

AJ Lynch said...

We could get rid of the 1,100 statutes to which Ginsburg leaned on as a basis for normalization of SSM.

Richard Dolan said...

"What is a marriage? Is it the bundle of benefits you receive? Marriage is seen as something left to the states in American federalism, but to say that is to ignore the immensity of what the federal government does, much of it hinging on this marriage classification that refers to state law."

That is all true as a matter of history, but not binding in terms of what Congress can do in the exercise of its enumerated powers to change history (subject only to other constitutional constraints). As you say, an interesting issue but the problem mostly inheres in federalism's notion of dual sovereignties.

Sometimes, as in a marriage, the two sovereigns just don't agree on something, and just have to agree to disagree while acting on their own notion in their own sphere of responsibility. If a state thinks that the federal gov't has hollowed out its definition of marriage by providing for only a 'skim milk' conception of the institution, the state is free to try to fill the gap if it can. But I don't see how that can be a limitation on Congress' exercise of its own powers.

Richard Dolan said...
This comment has been removed by the author.
Lem said...

Can singles sue for civil rights violations when they are refused their offer of matrimony... rebuffed... dissed... left at the altar?

And can we make it retroactive?

Tie up the courts.

hawkeyedjb said...

Why do we have arguments at the Supreme Court? The politicians on the court have long since made up their minds. They're just taking one side or the other, based (mostly) on their ideology, which is what they were chosen for in the first place. Seems like a waste of time to me. Just have your party-line vote and be done.

Dust Bunny Queen said...

You really do have much less of a marriage if you don't get all those federal things, but these federal programs all rest on an enumerated power — taxing, spending, etc. — and why wouldn't the feds, in designing any given program have, within that power, the power to delineate who qualifies?

EXACTLY my point all along. If the States grant same sex marriage, it STILL does not grant the full benefits under the law that the IRS/Federal laws control. The Feds DO have the power to confer the taxing and spending. They DON'T have the power to define marriage.

So if you are in a State that grants SSM, it still doesn't give the full effect. If people were TRULY concerned with equality under the law, they would be taking on the Federal Tax and Inheritance treatment as well as Social Security continuation of benefits.

I still think that the answer is to have a Federal and State recognized Civil Union/Domestic Partnership registry to qualify for the State AND Federal programs and leave MARRIAGE to the religious institutions. Some institutions will be amenable to sanctifying SSM.....Others will not. That is their prerogative and none of the business of the Government at ANY level.

Balfegor said...

re: AJ Lynch:

We could get rid of the 1,100 statutes to which Ginsburg leaned on as a basis for normalization of SSM.

Yeah, the problem is really that when you have this huge Rube Goldberg mechanism of taxation and redistribution in place at the federal level, it's kind of hard for it not to exert huge and improper pressure on the states.

On the other hand, I guess the flip side here is that I can't think of any time when supporters of SSM actually acknowledged the difficulty of integrating with the federal taxation and redistribution systems as a reason not to implement gay marriage, so at least to judge from the public debate, it's totally irrelevant to the actual behaviour of the state. Or have I missed something?

Meanwhile, of course, the problems of adjusting taxation and redistribution systems to account for polygamy is an excuse regularly raised by bigots and cultural chauvinists who object to recognising polygamy. Which of course has a long history of being outright hunted down and persecuted by the US government.

Administrative difficulties with the tax/redistribution system seem unlikely to be a good faith objection to either gay marriage or polygamy. It's more a facially neutral fig leaf excuse for not recognising marriages people would rather not recognise. As such, the practical coercive effect of DOMA on the states, with regard to their freedom to adopt their own marriage systems, is probably nil.

Lem said...

What is a marriage?

Whatever it was... Radical Feminism altered it... and since then the success rate plummeted.

Sigivald said...

"Mr. Clement, the problem is if we are totally for it would totally thwart 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... one might well ask, what kind of marriage is this?"

Seems odd that the States should get to tell the Federal government what it has to cover in Federal uses of the term.

(Hell, I think DOMA is a bad idea, and even if "defining terms" isn't outside of the Enumerated Powers, most of the things affected seem to be [like Social Security...].

But "the Federal government has to use the same definitions as each State" doesn't seem to be a general principle of terms in any other context, does it?)

I concur that, further, the State really has no business hinging anything on "marriage" even for traditional marriages.

(Also, MadisonMan is incorrect. Skim milk is inferior from first principles; this can in fact be deduced from pure reason, as Kant did in the unpublished addendum to the Critique.)

Emil Blatz said...

Well, whatever marriage is, I think we can all agree that there is marriage, and then there is this kind of arrangement, skim or not, that is typified by, for glaring example, Bill and Hilary Clinton. That goes down in the census books as a marriage, but I think we know it is something else.

Ann Althouse said...

"If I'm getting the message right the next position the government might take is the elimination of all marriage benefits. They'll take in a lot more in taxes if they do."

Absolutely not right. They kept talking about the 1100 statutes that include marriage as a classification. There's no way to disentangle all of that. The Court won't do that here, and it's impossible to picture Congress doing that.

Achilles said...

This is the core philosophy of statism defined and presented. Because the government has 1100 statutes that interfere in our society and family structure we must use government power to completely redefine an institution that has been a foundation of our successful culture. And the retards on the right fall right into the trap.

The government will destroy the institution of marriage. For the lower income levels in this coutry it already has and the poor are paying for it.

The government will invariably need to fix the problems created by the last government program. Now because of all of these handouts and tax loopholes and societal interference we need the government to assume more power to make it FAIR.

Marriage is a church institution. Not a government institution. If you want to save marriage, and the foundation of our society and culture, you will get the government out of it.


Ann Althouse said...

"The progressive death cult has no interest in children, our future, and therefore is spitting mad that the married are "advantaged" over the death cult's issueless ideal couple, Bruce and Steve."

How about Tiger and Lindsey or Kim Kardashian and that guy that isn't the father of her unborn child?

SteveR said...

Why does it often seem the primary benefit of being able to legally marry for some (I'd say most) homosexuals is that it conveys acceptance or normalcy? Why the push to having ssm performed in traditional churches (e.g. the United Methodist Church) but for that uncomfortable language in Romans which they'd like a work around for.

Ann Althouse said...

If anybody wanted to truly preserve the mom-and-dad unit for the sake of the children, they should have worked a lot harder in other places. Picking on gay people is not well-fitted to the problem you're asserting.

And why should gay people bear the burden of cleaning up the mess heterosexuals have made of their families? Why not just sacrifice some goats or something?

Lem said...

I suppose marriage is now a state of mind... two people are married when they say they are.

Sort of like Alcoholics Anonymous... or something.

Stephen A. Meigs said...

If the government has no legitimate interest in distinguishing between lesbian couples and heterosexual couples, then for lesbian couples to raise children, they will need sires for them. They might have a hard time obtaining those if such sires were required to be held responsible for child care. I might actually be led to support gay marriage if by his mistresses marrying each other, the male could be relieved of the labor of child support. (To our present system, I prefer how it used to be in France, where only marriage is considered proof of filiation.) I see in Kansas, notwithstanding many legally official looking promises by the lesbians to the surrogate father, a case came up in which Kansas feels justified in forcing the father to pay child support because the lesbians weren't officially married. If the homosexuals win these cases, I wonder if that would become unconstitutional in states where surrogate parents to married couples can't be legally required to give child support?

rhhardin said...

It's not two kinds or marriage.

One of them isn't a marriage at all.

Lem said...

... Kim Kardashian and that guy that isn't the father of her unborn child?

Le pusieron los cuernos a Kanye?

It could not have happened to a nicer guy.

Bender said...

It's an interesting puzzle. What is a marriage? Is it the bundle of benefits you receive? Marriage is seen as something left to the states in American federalism, but to say that is to ignore the immensity of what the federal government does, much of it hinging on this marriage classification that refers to state law.

Is this feigned ignorance? Or is it the case of intentional blindness?

"Marriage is seen as something left to the states in American federalism"

Before the states existed, was there marriage? Before then, before the British government, was it possible for people to be married?

If a group of people were to find themselves on a deserted island, would they be able to marry?

Bender said...

You don't need the damned government for real marriage to exist. It exists by virtue of the nature of the human person.

You only need government if you want to manufacture and thuggishly impose some legal fiction and call it "marriage."

chickelit said...

If anybody wanted to truly preserve the mom-and-dad unit for the sake of the children, they should have worked a lot harder in other places.

What about those who are working harder at that? What about those who've never divorced? Aren't you singling them out with your special sneer at old fashioned "mom-and-dad"?

This is where your special contempt shows through.

Nomennovum said...

Marry marry, quite contrary.
Trim that right. It's too damn hairy!

GrandpaMark said...

Will someone please define specifically 3 federal tax benefits enjoyed by a married couple with a $100,000 income, as opposed to 2 single people earning 50k each.

Nomennovum said...

Do negative benefits count?

JohnGalt said...

I sort of get Standing. What I don't get is how this affects the decisions at the lower levels if the Court decides there is no standing for, e.g., HR

Marshal said...

It's an interesting puzzle.

Actually it's neither interesting nor surprising. Every step the leviathan takes requires another step to become stable. That step in turn requires another. There is no stopping. There is only the fiction that the next step will be the last, which is carefully maintained by refusing to look more than one step ahead.

If only someone could come up with a catchy name for this process maybe people would pay attention. The Road to ... something or other. I give up.

Paul Zrimsek said...

Note the contrast with the Prop 8 arguments. There, the name was all-important, people dream of being married, not the same thing under a different name, "let me not to the civil union of true minds", har de har har. And so on.

Today we come to DOMA, and suddenly it's all about the benjamins.

David said...

So the answer to Scalia's question is that banning gay marriage became unconstitutional when the federal government began providing tangible benefits to persons who are married.

David said...

There is, by the way, a so called marriage penalty in federal income tax rates. Is this unconstitutional?

MayBee said...

If anybody wanted to truly preserve the mom-and-dad unit for the sake of the children, they should have worked a lot harder in other places. Picking on gay people is not well-fitted to the problem you're asserting.
-----------

Perhaps you would be better suited to argue this point if both you and your husband hadn't been previously divorced.


Look, I just think saying, "marriage is screwd up. Its important to let gay people marry" is a terrible argument.
Come at it from a respectful place.

Nomennovum said...

Will someone please define specifically 3 federal tax benefits enjoyed by a married couple with a $100,000 income, as opposed to 2 single people earning 50k each.

1. Only 1 federal income tax return needs to be filed!

2. Innocent spouse relief for the innocent and blameless wife!!

3. More state income tax means a greater federal tax deduction for state taxes!!!

MayBee said...

Marriage is wonderful. Two people, committed to each other, taking the extra step to say, "I want this commitment to be permanent. Lets make this work". It's beautiful. I want gay people to have this, if they love each other.

I'm not interested in inviting them into some ruined, rusty, has-been institution.

sinz52 said...

Lem sez: "I suppose marriage is now a state of mind... two people are married when they say they are."

We almost have something like that in my state of Massachusetts:

MA has long had an option for couples (regardless of sexual orientation) that I've never seen anywhere else: "One-day Marriage." You and your fiance don't need to be wed before a clergy or Justice of the Peace. One of your close friends can solemnize your marriage, if he is "of good moral character" and applies to the state for a one-time ("One Day") license to pronounce you husband and wife.

(Does any other state allow that?)

I always wondered if DOMA could have been used to keep other states from recognizing MA's "One Day Marriages."

edutcher said...

We are now in the territory known as, "a little bit dead, a little bit pregnant".

Watching the Lefties twist themselves in knots is amusing, but, the last time this happened, we got Roe.

sinz52 said...

Bender: "If a group of people were to find themselves on a deserted island, would they be able to marry?"

The history of solemnizing marriages is interesting.

During the Middle Ages in Europe, a couple could say their vows to each other and be considered married, even without a clergy or official present (though usually their families and friends would be there). Perhaps that was the beginning of common-law marriage.

Common-law marriage--saying vows, considering yourself husband and wife, but without any official recognition of your bond--continued for centuries afterward. It fell into disfavor in Europe, but it's still legal in some states in the U.S.

So yes, if a bunch of folks were marooned on a desert island, they could go with common-law marriage.

BTW: Jeff Probst, host of the TV reality show "Survivor," is an ordained minister. If any of the players who are marooned on that show wanted to get married, Probst could marry them right on the island.

Baron Zemo said...

Marriage is a sacrament.

Everything else is a civil matter to be determined by the law.

As long as marriage can remain a sacrament under the doctrines of the various religions who recognize it without government interference or coercion....then you can call your casual hook-ups and dangerous liaisons anything you want.

Marriage. Civil unions. Asshole buddies. In-A-Gadda-Da-Vida. Knock yourself out.

Baron Zemo said...

Marriage is a sacrament.

Everything else is a civil matter to be determined by the law.

As long as marriage can remain a sacrament under the doctrines of the various religions who recognize it without government interference or coercion....then you can call your casual hook-ups and dangerous liaisons anything you want.

Marriage. Civil unions. Asshole buddies. In-A-Gadda-Da-Vida. Knock yourself out.

chickelit said...

"Perhaps you would be better suited to argue this point if both you and your husband hadn't been previously divorced."

Althouse was just casting stones.

edutcher said...

sinz52 said...

The history of solemnizing marriages is interesting.

During the Middle Ages in Europe, a couple could say their vows to each other and be considered married, even without a clergy or official present (though usually their families and friends would be there). Perhaps that was the beginning of common-law marriage.


As not every village had a church, much less a priest, probably so.

Dante said...

If anybody wanted to truly preserve the mom-and-dad unit for the sake of the children, they should have worked a lot harder in other places. Picking on gay people is not well-fitted to the problem you're asserting.

I would say people have worked pretty hard on preserving this, Ann, but the Federal Government, and other movements have made it very difficult.

In any event, I fail to see how allowing married couples, who almost always have children, keep some of their own money rather than subsidize other activities, is "picking on gay people."

It's merely a recognition of the economic consequences of raising children. And further, the value of children to the state.

Someone has to pay off all this leftist profligate spending, and it looks like our government thinks it ought to be our kids.

Titus said...

1100 fucking statutes-that is gross.

wyo sis said...

If they can entangle gay marriage into the statutes they can unentangle marriage from them.

Dante said...

If they can entangle gay marriage into the statutes they can unentangle marriage from them.

Imagine taking the modern day lawmakers and making new law, such as for marriage. No thanks. I'll stick with the 1100 laws.

Eyago said...

"If anybody wanted to truly preserve the mom-and-dad unit for the sake of the children, they should have worked a lot harder in other places. Picking on gay people is not well-fitted to the problem you're asserting."

That argument is like having a robber in your house telling you you that you have no cause to complain about his stealing your silverware because last week he stole your big screen TV. You should have put up a bigger fight back then, so now just shut-up.

Seriously, you don't think the defenders of marriage didn't make a fuss about marriage deterioration for decades? They have fought tooth and nail for a very long time and have been forced to give ground and every time they do, that is used as an argument to force them to give on the next erosion of marriage and the in-tact family.

wyo sis said...

They don't have to make new laws, just repeal all the laws that created the mess in the first place.
Or better yet create civil unions for the legal benefits that this is really about and shut up about how the word marriage is unfair.

Balfegor said...

Re: Althouse:

And why should gay people bear the burden of cleaning up the mess heterosexuals have made of their families?

What's the burden? You only get to a burden if you start from the assumption that any two people who (for whatever reason -- convenience, love, family pressure, money) want to get married should be allowed to reap the benefits and bear the burdens imposed by legal marriage.

Sure there are cases like the woman who is having to pay huge death duties on her partner's estate, but that's only problematic if you start from the assumption that while friends, children, siblings, roommates and other close relationships should have to pay death duties, homosexual partners shouldn't (as it happens, I oppose death duties in all these cases). There's no reason or logic involved here -- it's purely a matter of the normative mental map you're working from.

wyo sis said...

I like this, it sums up how I feel...
"Our culture has accepted two huge lies. The first is that if you disagree with someone's lifestyle, you must fear them or hate them. The second is that to love someone means you agree with everything they believe or do. Both are nonsense. You don't have to compromise convictions to be compassionate." -Rick Warren

chickelit said...

That was a good quote, Wyo Sis. Thanks for posting that.

Lyssa said...

Balfegor: Sure there are cases like the woman who is having to pay huge death duties on her partner's estate, but that's only problematic if you start from the assumption that while friends, children, siblings, roommates and other close relationships should have to pay death duties, homosexual partners shouldn't (as it happens, I oppose death duties in all these cases). There's no reason or logic involved here

Actually, there is a logic. Longterm romantic partners usually share in property and support in and rely on each others' wealth and earnings. What's mine is yours and all of that. It's about forming a partnership in how you live your life, not just love. Friends, children, roommates, and siblings usually do not do this.

I agree with you that the gov't shouldn't get a bite either way, though.

MayBee said...

Good point, Ballfegor

If the government didn't see us all as revenue-generators, imagine how much different this argument would be!

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