Tuesday, July 2, 2013

DOMA argle-bargle

I started reading significant Supreme Court rulings last year with the Obamacare ruling. Luckily there hasn't been another ruling I felt compelled to read... until the DOMA ruling in June. A layman's opinion is only mostly useless, but I persist because I want to read and critique the arguments that the justices make.

Majority opinion
The majority opinion spends pages 4-13 justifying taking the case. I readily see how it was justified, since the issues were about due process and especially equal protection. That sounds constitutional to me. After all the justifications, the majority finally indicates its decision at p.20. It threw out section 3 of DOMA for violating equal protection and due process. The 5 to 4 majority is rather harsh about the objectives and motivations behind DOMA:
"The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages..." p.21
The majority, beyond using the words "disadvantage" and "stigma," also labels DOMA's intent or effect as to demean, humiliate, degrade, and disparage the unworthy, second class marriages. However, this isn't just the majority's interpretation. When the House passed DOMA, it did so to express, in the House's own words:
"...both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially JudeoChristian) morality." p.21
The majority makes a strong argument for its equal protection ruling:
"DOMA’s principal effect is to identify a subset of state sanctioned marriages and make them unequal." p.22
Their argument is: what the states have determined should be equal, the federal government has tried to undo. That sounds like a clear violation of equal protection to me. Not everyone agrees...

Scalia dissent 
Scalia rips into the majority. First, he argues for pages why the Court shouldn't have taken the case, while ignoring all the reasons it should have. Though there were clearly constitutional issues, Scalia claims that the Court can only make such interpretations when it has a case it must settle, regardless of how many other obvious cases on the same issue might be out there (p.2). He would have liked the case to stay out of court until there was a GOP administration that would enforce DOMA and defend it whole-hog. If Obama thinks DOMA is unconstitutional, he just shouldn't enforce it. (Then we could have the nauseating whiplash of DOMA rules changing every four or eight years. But that's not a reason to hear the case now, according to Scalia.)

Scalia does correctly point out that DOMA could be construed as having a positive purpose--consistency of federal response to marriage (p.20). He errs by imputing only good intentions to DOMA, but he shows that the majority errs by imputing only nasty intentions.

Scalia makes a slippery slope argument that the Court will next make same-sex marriage legal in all states, imagining the exact words the Court could use to force same-sex marriage on all states (p.23). Having divined what (he thinks) the majority wants, he then uses the harshest language in the entire decision, but projects it onto the majority:
"[the] Court ... finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the 'personhood and dignity'... By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority..." p.24
Wow. I thought the majority emphasized the unfairness a bit too much, but Scalia saw their bet and went all in. I don't think the majority declared that those who are against same-sex marriage are devoid of human decency, but it must be so because Scalia says it is.

Scalia doesn't bother to discuss the equal protection considerations. That seems to be the crux to me, and hard to defeat, so it's no wonder he doesn't touch it.

The most quoted part of Scalia's dissent was his labeling of the majority's reasoning as "argle-bargle" (p.22). No Scalia dissent is complete without some sort of ridicule of the majority's line of reasoning, but the "argle-bargle" quip wasn't nearly the worst of it.

Alito dissent
Unlike Scalia, Alito spends most of his dissent grappling with the question of equal protection. At times, he's just dismissive: "that framework is ill suited for use in evaluating the constitutionality of laws based on the traditional understanding of marriage" (p.10). He spends a long time on classifications and scrutiny questions relating to which classes deserve "equal protection" and which don't.

At the end, he lauds the majority's emphasis on letting states decide. Then for no reason I can see, he blithely skips over equal protection considerations. Sorry folks, no equal protection for you. Still, he "respectfully dissents," in marked contrast to Scalia's fierce and disrespectful dissent.

Justice Thomas signed on to Scalia's dissent. Roberts thinks the Court shouldn't have taken the case, and dissents to any change in the law. By my score, 6 are OK, 1 is a wimp, and 2 are high-handed, insulting autocrats. If you disagree with me, ARGLE BARGLE!!!!

Image: quickmeme.com


Dangerous said...

Another set of muddled, results oriented reasoning from the Supreme, this time on both sides of the issue.

I give you more respect, MP, as a layperson than I give the Supreme Court as an institution. More often than not, justices rely on their positions to make their rulings seem well-reasoned and authoritative when, in fact, they are not. To you and most Americans, "equal protection" means what it says. To justices on any side of an issue, it's a hurdle to however they want to decide an issue.

While the DOMA majority ruling is fundamentally correct, and its reliance on equal protection and due process claims is sound, they don't enforce that same standard on when states decide to recognize whose marriages count and whose don't. In fact, the core logic is that the federal government should defer decisions on equal protection in marriage laws to the states. Hardly a strong ruling after the tongue-lashing Justice Kennedy saw fit to render.

So Justice Scalia takes the obvious whole in the reasoning and correctly projects logically what the court should do, even if he would be dead-set against it doing so. If equal protection is the basis for requiring the federal government to recognize marriages, then ALL the states have the same equal protection requirement.

Sure, Congress put DOMA in place to wage a political war against unpopular homosexuals. The fact is that most people find homosexual behavior abhorrent and distasteful, so it's a potent political weapon to appeal to people's disgust at the idea of homosexual acts and participants. The thought that those who engage in such activity could actually marry each other like majority heterosexual, make them an easy political and, with DOMA, legal targets for discrimination and, naturally, no equal protection.

But, as I've pointed out in many forums, homosexuals DO marry; the only question is state recognition of that voluntary familial union. Allowing states to decide which consenting, competent adults can and can't form such a voluntary contractual relationship, no matter the parties' reasons, is always done so unequally. Put more forcefully, what business does the state have deciding who we can choose as our spouses?

As some point, the Supreme Court is going to have to make a national definition of marriage that meet constitutional muster which everyone has to swallow whether they like it or not. The fact is, everyone else's choice of whom to marry is nobody's business. If gays marry gays, or straights marry straights, or gays marry straights, or celibates marry each other, or what have you, choosing spouses is up to the people who choose to marry each other, whether sexual preference is an element in that decision or not. So anyone opposed to someone else's choice in mate or lifestyle can lump it. Under the law, every marriage is equal, period. They are equal because the parties consent.

The Supreme Court has to say so.

ModeratePoli said...

@Dangerous, I'm afraid you're wrong if you think there is an obviously correct conclusion to this issue. The differing opinions aren't because some justices are illogical, while the others aren't. This is an issue with competing interests and values. You rate certain value as more paramount, and other people make a different choice.

Any person, in deciding to support same-sex marriage, has to buck tradition, meaning that they will rate tradition as a lesser value.

You say that marriage is based on consent. That's interesting because Alito talks about different constructs for marriage, either "conjugal" or "consent-based." It starts on p.13 of his dissent, and is definitely worth reading.

By the way, all states exercise some control over the choice of marriage partner--age restrictions, parental permission, blood relationships, familial relationships (some states don't allow marriage between step-children). But states choose these restriction on what they consider "rational basis." Some arguments seem reasonable... until they don't seem reasonable anymore. Some people are still against interracial marriage, and they do their damnedest to marshall the best arguments they can.

Finally, you may want the Supreme Court to end discrimination in marriage, but are you sure that you can defeat all the arguments? Unfortunately, a state could decide that there is a compelling interest in supporting traditional "conjugal" marriage, and that may be enough to allow them to discriminate (restrict) on that basis. That is, it may work in the legal framework. I mean not agree with the conclusion, but I can't necessarily fault the logic. Should I be able to impose my conclusion despite the "hurdles" in the way?

Dangerosu said...


Yes, I can defeat ALL arguments.

Tradition? Whose tradition. Someone else's "tradition" can override the parties' choices in spouse?

People choose their spouses. That's the number one rule the state has for certifying a marriage. If the parties do not consent, the marriage doesn't count. If one party can show that their consent was not freely given at the time, that's grounds for an annulment. Consent is what matters, nothing else.

Now, as far as the state setting some rules at to who can give consent, that is consistent with other laws that guide consent to enter into ANY contract. That's what marriage is: a contract. It may be more to the parties, and perhaps even more to society as an institution, but it's a private contract between the parties as far as the state is concerned. Once, formed, the state is a silent partner at most. They do not intrude to sever the contract unless the parties invite the state to adjudicate or one of the parties dies.

But that is where the state's role starts and ends. Marriage is a registered contract (if the parties so desire it). So, you may ask, a contract for what? The answer is simple: It's a contract for form a new family.

So rules the state assigns to limit marriage from existing familial associations derives from there, period. You can't marry your brother or sister because then the contract does not create a new family. But if you demand that I address this, I'll do so with a hypothetical:

A biological brother and sister are separated at birth and grow separately to adulthood. They then meet, not knowing they are related by blood, and get married. During later DNA testing, they learn that they are, in fact, biological brother and sister. Can the state annul their marriage?

I'd say the answer is NO. Why? When they entered into the marriage contract they created a new family despite their blood relation.

I win this argument every which way for one simple reason. Whether one outside party or nearly all other outside parties object to someone else's marriage, they have no STANDING to object to the party's choices in spouse. None of them would be ready to allow the community to approve of their choice at the time or later to make the marriage valid under the law. The state, acting on behalf of the community, can't exercise greater authority than an individual could in objecting to a union. No "rational basis" or "compelling state interest" can possibly exist to "support" some party's choices and deny others.

Further, the burden falls heavily on the party making the claim of rational basis or compelling interest to overrule individual choices, not on the opposing party to prove to the claimant that their basis is not rational. One can always come up with a "rational" basis to deny someone, particularly if one relies on circular reasoning or mushy facts.

I'd like for someone to make some sort of case that the state has a compelling interest to deny equal protection for some people's marital contracts and not others. I've read everything I can find on the topic and nobody's come up with it yet. The state can "support" "traditional" "marriage" without denying equal protection, although the state isn't in the business of choosing sides or encouraging parties about who to marry.

The state, via it's laws, must simply recognize that parties have chosen a spousal relationship. People do so anyway, so if anyone is offending by those adults' choice, TOUGH CRAP!! A marriage contract is a marriage contract. If you're not a party to it its none of your damn business.

ModeratePoli said...

@Dangerous, you have exaggerated the role of consent, and given it the primary role in marriage, when it isn't. Your arguments aren't as strong as you think they are.

I can ask, "what if consent is just one of the requirements?" Well, that's quite possible and it fits the facts of the situation.

Boom! Do you even still have an argument? You may think so, but I'm not convinced. Does your argument work if consent is just one of the requirements for marriage?

Dangerous said...

There is no marriage without consent. For state recognition, a requirement of a witnessed contract makes sense, but to the parties this is a formality and the exact terms of the marriage "contract" are subject to concurrent or later modification from what is, essentially, a short-form marriage license with common-law spousal rights and obligations. Some terms are negotiable -- such as power of attorney for medical decisions -- and some are not -- such as joint and several liability.

It's the contract the state recognizes, nothing more. You don't need to meet any other tests -- or rather a man and a woman don't need to meet any other tests, except those normally reserved for validating the ability to legally consent to forming a new family unit. So just asking your question about other "requirements" diminishes my argument not at all, and shows how weak your supposed rebuttal is.

Can you clarify what the "other requirements" for a marriage are? Do they apply to all marriages, all parties consenting to the marriage, and to all of the above equally?

The fact is that except for the limitation on a party's ability to give legal consent, and that the parties do not already have a familial relationship already, there are no other requirements for the state to recognize a voluntary marriage. Except, of course, that the parties be one man and one woman.

Now, if it later turns out the marriage is defective due to, say, fraud or coercion, the state may annul the marriage. So one could argue that those are also "requirements", but also consistent with standard contract law. A contract joined without a meeting of the minds or with material misrepresentation can be rescinded or annulled. Hence, there's a defect in consent. So the "other requirements" have to be germane to central purpose of the contract, which is for the parties to form a new family. Most of the time, lacking outright criminal action coincident with the marriage contract, the state cannot act to annul the marriage.

Hypothetical: Two people decide to get marriage at one of those quickie chapels in Las Vegas. After the ceremony, the wedded couple robs the place. Can the state annul the marriage?

My arguments are far stronger than you think they are. They are sturdy and can't be broken -- ever. It's your rebuttal (which I assume is of the devil's advocate variety) that are weak and easily dismissed. Feel free to lay out as many "other requirements" as you wish and I will patiently and thorough crush them all for every direction.

The only valid requirements are legal consent to form a new family and, quite reasonably, explicit execution of, say, a marriage license. Note that for people to call themselves "married", and to have a ceremony and invite their friends to a party and hire a caterer for the event, they don't need either of these. So the entire argument is about state recognition of the contractual "marriage" and conjugal elements have nothing to do with it either at any time before, during or after the execution of the contract. Hence, any argument that uses anything that is not a legal requirement -- such as tradition or "rational basis" or state interests in the institution automatically fail because whatever they are, they are not a requirement for the state to recognize some marriages.

ModeratePoli said...

You're right that marriage seems to be the sole vehicle for forming new families, so people use it that, whether straight or gay.

However, I don't think you can discount that its basis for centuries was primarily conjugal, often with some diplomatic, commercial, or barter considerations in tow.

Society needs to make a change in its view of marriage to accept marriage as primarily a consensual arrangement where the goal of having children and heirs is no longer the primary purpose. In fact, societal view of marriage has been changing, but that doesn't render the older view illogical, which you seem to claim it was. Rather than saying that your view of marriage can't be defeated ever, you'd do better to realize that marriage is a social construct and reflects societal values. We just happen to values inclusiveness in society, and also value free choice of spouse, and having life companions. It could be otherwise.

As for the requirements for marriage, if I remember correctly, age (or parental consent), no current other spouse, reporting of prior marriages and dates they were dissolved, proof of identity, blood tests for STDs, affirmation that the spouse isn't a blood relative in disallowed categories.

Dangerous said...

However, I don't think you can discount that its basis for centuries was primarily conjugal, often with some diplomatic, commercial, or barter considerations in tow.

I think you just did, and I can summarily dismiss that argument for making "primarily conjugal" a basis for state recognition. It was never a requirement then -- not that then matters at all for today's argument under the U.S. Constitution's guarantees of equal protection and due process (and no state established religion or religious tests) -- but different parties had different reasons for "marrying", and in many cases "traditionally", one or both (or multiple) parties didn't have a choice in the matter. In fact "traditionally" consent freely given to the union by the parties wasn't a requirement under the law, as it is now.

So, once consent is paramount, the party's reasons for giving that consent are their business and not subject to legal intrusion, second guessing, or denial of options without a compelling and scrutinized state interest. For example, some states still have a blood test, but I would bet that even if one of the parties had an STD, if challenged the state could probably not deny the parties from getting married anyway. I can understand the requirement as a prerequisite for the parties to have fully informed consent, but not as a barrier to state recognition of the voluntary contractual relationship among the parties. The same holds true for the rule concerning no other current spouse -- with some additional issues I won't address here -- since the existence of another concurrent spouse could raise questions of fraud by false promise. Proof of identity as a prerequisite similarly provides some measure of fully-informed consent, albeit minor compared to other aspects of a person one has chosen to be one's spouse.

But, again, if any prerequisite later turns out to be less than completely accurate, it's not the state's standing to unilaterally annul the marriage. The parties can claim fraud (as to, say, identity, gender, concurrent marriage, etc.) on a case by case basis. it's contract law which informs the process; the state would only under specific circumstances have standing to invalidate or rescind a private contract against the parties' will. That the state became a party to a marriage contract doesn't change that since the state itself is not an equal partner in that contract simply by joining it via state recognition. (I hope you see the circular-reasoning problems in the law making the state an equal partner in a marriage creates.)

So I'm hoping you'll see, MP, that marriage as a contract to form a new family is a much sturdier definition than you gave it credit. I disagree that it's "better to realize that marriage is a social construct and reflects societal values." Perhaps for the institution, but for parties to a marriage, society can shut the F up and stay out of it beyond acknowledging the contract. Society's values don't have standing in my marriage. Are you prepared to allow them to intrude uninvited into yours?

ModeratePoli said...


Yes, you've made a good case here that marriage as practiced in the US is closer to the 'consent' model than the 'conjugal' model. The 'consent' model also fits better with the constitution's emphasis on individual rights (which I never argued against.

However, I found Alito's discussion of 'consent' vs. 'conjugal' clarified many issues for me.

Though I support same-sex marriage, I'm not sure there is a watertight case for the Supreme Court to force all states to allow and recognize it. I don't know that equal protection rights for unions supersede state interest in supporting the traditional marriage model. Or I might be fearful of backlash if the Supreme Court yet again imposes unwanted social change on many states. I think it is proper to continue letting the states manage marriage law rather than mandating y nytionyl styndard. (The key of the first letter of the qlphqbet finqlly quit on my keyboqrd. I'm in trouble.)