March 27, 2013

Today in the Supreme Court: the Defense of Marriage Act.

Adam Liptak explains the statute and the arguments against it.

This law was passed in 1996 — almost 20 years ago. Why has it taken so long to get to an answer about its constitutionality? I did a final exam in my Constitutional Law class based on DOMA in, approximately, 1996.

One thing about the current case: It has a crisply defined embodiment of the asserted constitutional right — an 83-year old woman (Edith Windsor) whose spouse died and left her property that would be tax free if the IRS recognized her marriage and who is stuck instead with a $360,000 tax bill.

Her opponent is "United States," a formidable party, usually, but in this case, bizarrely vague:
[I]n February [2011], Attorney General Eric H. Holder Jr. announced that he and President Obama had concluded that [DOMA] was unconstitutional and unworthy of defense in court. Mr. Holder added that the administration would continue to enforce the law.
That's unpleasant. They're lying back waiting for the Court to do the difficult work.
[The administration] agrees with Ms. Windsor that the law is unconstitutional, but will not pay her the tax refund she seeks. House Republicans, represented by Paul D. Clement, a former United States solicitor general, intervened in the case to defend the law, losing in the lower courts.

Even though the administration’s legal position prevailed in the lower courts, it filed an appeal to the Supreme Court, saying the matter should be decided by the nation’s highest tribunal.

The Supreme Court appointed Vicki C. Jackson, a law professor at Harvard, to argue a position not fully supported by any party: that the case’s odd procedural posture means the court lacks jurisdiction to decide it. The court scheduled a separate 50-minute argument on that question.
Does anyone want that argument to succeed? But I await Professor Jackson's arguments. It might be that the Court shouldn't rescue the administration from its politically uncomfortable position. But I feel sorry for the Edith Windsors whose cases are not governed by the 2d Circuit opinion.

50 comments:

Beta Rube said...

How unusual is it for the SC to appoint a third party to posit an argument that neither side is explicitly making?

I don't recall this happening, but I am not a vigilant court watcher.

Guimo said...

Those dumb-asses should never have passed DOMA in the first place. Where in the U.S. Constitution does Congress have the authority to legislate on the subject of marriage? It's a matter reserved to the several States.

RichardS said...

Thanks to the living constitution, traditional rules of standing needn't bother the Court if they think they are in the way.

bagoh20 said...

The problem is government theft of a person's property simply because they lost their spouse. This bullshit is the whole problem with this whole SSM thing. The government should not be in the business of rewarding or punishing people based on their personal relationships.

James Pawlak said...

Is anyone bringing up the Tenth Amendment to the Constitution?

bagoh20 said...

Is stealing this woman's money one of those legitimate interests that government needs in order to act?

Shouting Thomas said...

So, let's see what the issues are here:

1. The "self-esteem" conundrum inherited from Brown v. Board of Ed.

2. Inheritance and property rights

3. Parenting rights (muddled up quite a bit by modern technology, i.e., the turkey baster)

4. Spousal rights in benefits

Am I missing anything?

SteveR said...

Its interesting which laws Eric Holder feels like enforcing and which laws he decides not to. Almost seems like its about politics and idealogy and not about the law or the.. whatcha callit..the um..oh yeah, the Consitution.

Bill Clinton, for DOMA before he was against it. What's changed?

edutcher said...

DOMA was a pander to the bubba vote in the middle of L'Affaire Monica.

Willie, all the way.

The money line, literally, is, "The 1996 law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse".

That's all this is about.

Hagar said...

Bill Clinton wants to be the bride - or at least the best man - at every wedding.

MadisonMan said...

The Executive Branch should be enforcing all laws, not just the laws it likes.

Don't like DOMA and what it does? Then submit a bill to repeal it, and twist arms 'til it's repealed.

Kohath said...

So the government steals from dead people. And that means we need to change the definition of marriage.

edutcher said...

Hagar said...

Bill Clinton wants to be the bride - or at least the best man - at every wedding.

More like the seigneur.

And the corpse at every funeral.

gerry said...

This is a bad law. The federal government has no business doing what has always been the business of the states: defining marriage.

Also, anything that deprives the voracious federal maw of funds is a good thing.

Lyssa said...

Mad Man, I think that DOMA is unquestionably unconstitutional, but I completely agree. This idea that the administration can just pick and choose what laws to enforce is completely incompatable with our supposed system of checks and balances.

Oso Negro said...

If Edith Windsor was stuck with a $360,000 tax bill, it must have been a pretty good inheritance. I feel sorry for people who spend their money raising children and have nothing left when they are old.

edutcher said...

MadisonMan said...

The Executive Branch should be enforcing all laws, not just the laws it likes.

You don't understand.

The Constitution is a Living Document. What was constitutional before isn't today.

Especially if it gets in I-am-not-a-Dictator Zero's way.

Ann Althouse said...

"Those dumb-asses should never have passed DOMA in the first place. Where in the U.S. Constitution does Congress have the authority to legislate on the subject of marriage? It's a matter reserved to the several States."

That was the topic of the exam, which was in conlaw 1 not conlaw 2. Conlaw 2 is the rights course.

Where was the enumerated power? 1996 was one year after Lopez, so the Commerce Clause could not longer be assumed to work for everything. The students were asked to consider Article 4, Section 1:

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof."

Congress gets a power there, but it seems to have used it to discredit a certain type of law.

AprilApple said...

When you die, the government steals your stuff.

Isn't that neat?

You've paid tax on all of that property and income your whole life, and yet somehow it's OK to let the government take from you and your family what has already been taxed.

Democrat family values.

AprilApple said...

[The administration] agrees with Ms. Windsor that the law is unconstitutional, but will not pay her the tax refund she seeks.

Economic justice - Democrat style.

MadisonMan said...

When you die, the government steals your stuff.

Isn't that neat?

Not if you're married. Therein lies the problem.

When Mom died, Dad was stuck with a big tax bill -- but that's because Mom left stuff to us kids, stipulating that her Estate, meaning everything else that Dad got, would pay the taxes on it. Thanks Mom! Now there's less to tax when Dad passes.

Real American said...

another rich Democrat who doesn't want to pay her fair share!

Scott M said...

"All Dave, all night. We know what you need. Only right here on Dave TV."

cubanbob said...

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof."

Why does this not apply to carry concealed permits to individuals traveling between states?

Real American said...

I look forward to President Rand Paul's administration deciding that all sorts of federal laws are unconstitutional refusing to enforce them and defend them in court.

bagoh20 said...

""Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."

Except when they are in conflict, then you have to pick one, but it's nice that they wrote that, since they did get some points for length.

RichardS said...

So long as there is a federal estate tax, and so long as one half of a couple does not pay tax when the other half dies, the federal government MUST defined marriage.
There is also the question of benefits for spouses of people on the federal payroll, on federal territory, in the District of Columbia, etc.

But why would it be wrong, under current doctrine, to marry, exchange cash for stock and divorce?

Does federal law demand that marriages be sexually active? So much for the right to define marriage as we choose? Such a law would keep people who are no longer interested in sex from marrying.

Paul Zrimsek said...

Chorus of lefties, pointing out that Windsor has no complaint because the government can take all it likes from dead people, coming in 3... 2... 1...

0... -1... -2... -3...

MadisonMan said...

It seems to be that prudent planning could have reduced this "poor" woman's tax burden -- whether or not she was married. That is true of anyone. For example, Mom could have gifted me/showered me with Money and Stocks while I was still alive (of course, that would have meant giving up control; I won't go into that) That would have reduced her income, but also Dad's tax burden. Maybe that was her ultimate plan, but her decline in health was too rapid to execute it.

Anyway, bottom line is: You CAN reduce your tax burden from the default if you want to. This woman could have. You can say it's not fair that she has to plan things where a married couple need not have to. That's true. It's not like they didn't know the law, however.

So in general, I have not much sympathy with people who complain about an onerous tax bill -- I'll except, of course, BagOh, because losing a company you've built up because of death duties is ridiculous and counterproductive.

cubanbob said...

RichardS said...
So long as there is a federal estate tax, and so long as one half of a couple does not pay tax when the other half dies, the federal government MUST defined marriage.
There is also the question of benefits for spouses of people on the federal payroll, on federal territory, in the District of Columbia, etc.

There is no need for a federal definition of marriage. Your example is resolved easily by the federal government recognizing the marriage or civil union laws of the various states.

Marshal said...

So Democrats are reduced to arguing estate taxes are unfair.

It makes you wonder where the 99%are. Maybe there's a 1% gay exclusion rule they didn't publicize.

Jay said...

Guimo said...
Those dumb-asses should never have passed DOMA in the first place. Where in the U.S. Constitution does Congress have the authority to legislate on the subject of marriage?


Since the federal tax code has a lot to do with marriage, we will start there.

Bob R said...

@Pawlak - No one ever brings up the tenth or the ninth. Until President Rand Paul puts Randy Barnett on the Supreme Court (be still my heart,) no one ever will.

Jay said...

Marshal said...
So Democrats are reduced to arguing estate taxes are unfair


On top of arguing for tax breaks for mostly white and affluent gays.

Oh, and they're also pretending to be libertarians now too.

RunnerJeffM said...

We've come to a pathetic state when it is widely held that it is easier to redefine marriage than simply change the tax laws; even particularly wrong-headed ones. Maybe SSM will be the law of the land but I wish the methods by which this government extracts revenue from its citizens would be exposed to a reasonably proportional level of scrutiny.

Jay said...

Ann Althouse said...


Where was the enumerated power?


It is the same power that allows for Social Security, Medicare, Medicaid, Ag Subsidies, Midnight Basketball, Cash for Clunkers, ObamaCare, et. al.

Everyone seems to be forgetting that DOMA was a reaction to the Hawaii supreme court legalizing gay marriage in 1993.

Henry said...

bagoh20: Is stealing this woman's money one of those legitimate interests that government needs in order to act?

Stealing a woman's money is certainly one of the very traditional aspects of traditional marriage. Governments thought it a very legitimate interest.

Left Bank of the Charles said...

This DOMA case involves the taxing power, where the federal government has very broad powers to make arbitrary distinctions.

Also, Edith was married in Canada not New York. I hate to say it, but this case seems ready-made to uphold DOMA.

DADvocate said...

Finally, we're addressing the incredibly damageing bias against gays, even though blacks and other minorities still suffer greater harm due to bias. Once we get this settled, maybe we can address the continuing bias against blacks and the egregious affects of affirmative action and other bias agianst white males, black males and males in general. (I wonder if black males and gay males realize that much of the bias against them is simply because they're male.)

DADvocate said...

Amazing how there are such huge constitutional questions regarding SSM while laws clearly intended to discriminate against groups based on race and gender are seen as unquestionably constitutional by the same raving lefties.

Leland said...

Question, could SCOTUS find that parts of the tax law related to estate/inheritence tax is unconstitutional?

I ask, because if DOMA is unconstitutional based on no enumerated powers; it still doesn't resolve Edith's problem. If the IRS determines marital status by what the state reports, then it would depend on what state Edith lived. If this then violated the 14th Amendment, then how can the Federal IRS impose this law?

bpm4532 said...

I see DOMA as merely establishing the definition of a legal term. As Congress can make many laws that discriminate on some basis (tax rates) it is reasonable to conclude it can make other laws that discriminate on other bases, particularly related to taxation. As the law does not stand in the way of any known "right" unalienable or based in common law, it seems clearly to be constitutional.

X said...

still wondering why inheritance tax is only an outrage if it falls on a member of a married couple. I have some neighbors who are elderly twins. should one on them owe a tax when he loses his brother?

bpm4532 said...

We've seen only last year the power of Congress to tax and establish rules over how that tax may be levied are pretty broad, regardless of the economic sense or morality of the law.

Wealth/Asset taxes should be viewed as immoral. Income taxes or transaction-based taxes are fine because you can plan for them. Wealth/asset taxes are retroactive taxes on past income - this serves as the basis for their immorality.

bpm4532 said...

An inheritance tax is a wealth/asset tax and thus should be viewed as immoral.

bpm4532 said...

From the NYTimes article:

'Justice Ruth Bader Ginsburg said the federal law effectively created a two-tiered system of marriage. “There are two kinds of marriage,” she said. “Full marriage and the skim-milk marriage.”'

This is a really stupid statement. The federal law did no such thing. It defined "marriage" clearly and unambiguously and there is only one kind.

jr565 said...

Olson makes gruel out of a legitimate question asked by Sotomayor (!)

http://cnsnews.com/news/article/ted-olson-prohibiting-polygamy-not-prohibiting-same-sex-marriage

Sotomayor asks:
Mr. Olson, the bottom line that you're being asked -- and -- and it is one that I'm interested in the answer: If you say that marriage is a fundamental right, what state restrictions could ever exist?”

Meaning, what state restrictions with respect to the number of people, with respect to – that could get married -- the incest laws, the mother and child, assuming that they are the age -- I can -- I can accept that the state has probably an overbearing interest on -- on protecting a child until they're of age to marry, but what's left?”


Olson's answer is beyond stupid.
He says “If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status,” Olson said.

Olson said banning gay marriage was “picking out a group of individuals to deny them the freedom (the court) said is fundamental.”


If marriage is fundamental right then denying brothers and sisters the right to marry is denying a fundamental right based upon their status. I thought, though, that marriage was a fundamental right.

jr565 said...

and brothers and sisters would meet the criterion for marriage since they are man and woman. BUT for their status as brother and sister they are denied a fundamental right to marriage. You wouldn't even have to change marriage to give them marriage rights, you could simply change the status of those in incestual relationships to be non controversial and therefore allowable.

But if states can deny people who would otherwise be allowed to marry from marrying how would it somehow be denied the right to deny marriage to people who don't fit the definition of marriage in the first place?

David said...

Nice stand on principle by DOJ.

The principle being the collection of that estate tax.

Plus the usual political principle of avoidance of accountability.

Weasels.

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