“Precedence,” as well as following or overturning precedents, is not limited to what is decided in new cases. It is also concerns the adherence to established principles of judicial jurisprudence. Without both kinds of precedence, there is no limit to the power of the judiciary…

In the last installment of this survey of the judicial principle of “precedence”—as well as the ignoring of precedence—in the Supreme Court’s contraception, abortion, and homosexual-marriage cases, we discussed the revolutionary homosexual-marriage case, United States v. Windsor (2013) and concluded that it was the Supreme Court’s “most unprecedented case.” But that essay concerned only the unprecedented procedural strategy by which complainant Windsor, the Obama Justice Department, and the Supreme Court colluded to bring about that decision by the Court. Now, we consider the constitutional substance of the Court’s Windsor decision and go on the demonstrate that the effect of Windsor by itself was even more profound than the next case, Obergefell v. Hodges (2015), which imposed homosexual marriage as a judicial demand on the states.

In Federalist 51, the author (James Madison or Alexander Hamilton) held that “[i]n republican government, the legislative authority necessarily predominates.” In 1996, the Congress—worried about the Supreme Court’s intentions for homosexual marriage after its Romer v. Evans (1996) decision in which it held that Colorado could not forbid affirmative action for homosexuals—decided to defend the understanding and definition of marriage that had always been “implicit” in federal law, and thus exercised its “predominant authority” by enacting the Defense of Marriage Act (DOMA). That federal law made it clear that under all federal laws, programs, and regulations, marriage concerned “a legal union between one man and one woman.” DOMA passed the House by a vote of 342-67 and the Senate by a vote of 85-14, and was signed into law by President Bill Clinton. It did not prevent states from enacting homosexual marriage in their own laws; that is, it was a statute based on American federalism.

Everything but the Constitution

The DOMA response to Romer was an unprecedented confrontation over the meaning of words between two of the three branches of the federal government. Marriage, which does not appear in the federal Constitution but does appear in many if not most state constitutions, had never needed definition at any level of government. The basic structure of marriage was a pre-legal premise of society. Marriage was not defined in the law. Marriage defined the law. There had never previously been a need to define—or to defend —what marriage was.

In Windsor, seventeen years after the Court’s Romer decisions and Congress’ conclusion that it had won by enacting DOMA, the Court took on marriage at the federal level. Plaintiff Edith Windsor, a widow under the recently-enacted New York homosexual-marriage law, sought a refund of her federal estate tax assessment because DOMA did not recognize her marriage. As the supposed substantive basis for the decision, Justice Anthony Kennedy (with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) devised two paths.  First, Justice Kennedy began by citing the more-than-obvious principle, even referring to McCulloch v. Maryland (1819), that when Congress creates a federal program, it has the authority to define the structure, principles, and terms of the program.

But then, in immediately repudiating that point, Justice Kennedy observed that the Congress, although referring to marriage in a few areas of federal law, e.g. immigration, had never defined marriage across all federal programs. In enacting the comprehensive DOMA, Justice Kennedy continued, it had engaged in “a far greater reach.” Ignoring Congress’ finding that the DOMA definition of marriage had always been “implicit” in federal law, Justice Kennedy said that the Congress had failed to take into account a national “new perspective, a new insight” into homosexual marriage and relating to homosexuals, a new “class of persons.” But with no allegation of unconstitutional discrimination against an established “suspect category” like race on which to base the ruling, he cited the recent New York law about homosexual marriage and the laws of only eleven of the other fifty states and the decisions of the state supreme courts of Massachusetts and Iowa. That is, the national “new perspective” did not exist in 76% (38) of the states.

Justice Kennedy then invented his own kind of federalism while denying at the same time that the case had anything to do with federalism; that is, he held that the majority opinion was “quite apart from principles of federalism—his only mention in the entire opinion of that fundamental structure of American government. He thus disregarded the explicitly federalist provision of DOMA: that is, it did not affect each state’s authority to define marriage in its own right. He said that “the recognition of civil marriage is central to state domestic relations law.” DOMA, of course, did not interfere with that. The pretense of Windsor’s case was a challenge to federal estate tax law, not the definition of marriage in New York state law.

Along with ignoring federalism, Justice Kennedy’s majority opinion for the Court held that the Court was assessing DOMA’s “validity”—that is, notably not its constitutionality—for “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution.” In the end, he fished out a constitutional rationale by declaring that the overturning of DOMA was based on the “equal protection” aspect of the Fifth Amendment’s Due Process Clause, a constitutional notion which the Court had first put together in Bolling v. Sharpe (1954).

When the Court rules unconstitutional a federal statute, it does so based on a specific constitutional passage, frequently in recent years the First Amendment, as in Alvarez (2012), AID (2013), and McCutcheon (2014). In South Dakota v. Dole (1987), the Court upheld the National Minimum Age Drinking Act tied to federal highway funds and established that federal legislation under the spending clause must: 1) be for the general welfare, 2) be unambiguous, 3) be clearly related to a federal program, and 4) not violate specific constitutional guarantees. It can be seen that DOMA passed all those tests. In NFIB v. Sebelius (2012), the Court upheld Obamacare as an exercise of the taxing power. For the Court, Chief Justice John Roberts said of Obamacare’s tax on individuals for failing to obtain health insurance that “because the Constitution permits such a tax, it is not our role to forbid it, or to pass on its wisdom or fairness.” In Windsor, no one argued—and the Court did not hold —that the Congress, pursuant to its authority under the Sixteenth Amendment, could not tax the income from estates.

The second path for Justice Kennedy was to cite his own opinions in Romer and Lawrence as the basis of this new non-constitutional constitutionality. At two separate places in the opinion, he quoted the same passage in Romer that had forbidden “discriminations of an unusual character.” Such “unusual” discrimination, Justice Kennedy now said in Windsor, amounted to an “improper animus or purpose” against homosexuals. Thus was constitutional adjudication changed from the interpretation and application of the words of statutes and constitutions to an assessment of who had acted, as Justice Antonin Scalia said in his Windsor dissent, with “malice” and “hateful hearts” in drafting those documents. The subject matter of Romer, of course, was not marriage. As for Lawrence, Justice Kennedy cited it for the constitutional doctrine of sexual liberty he had proclaimed therein. “Private, consensual intimacy between two adult persons of the same sex,” he said in Windsor, “may not be punished by the State, and it can form… ‘one element in a personal bond that is more enduring,’” (internal quoting of Lawrence), for DOMA “demeans the couple, whose moral and sexual choices the Constitution protects.” The subject matter of Lawrence, of course, was not marriage, and the text of Lawrence, as has already been pointed out, promised that it would not affect marriage.

Windsor: the most unprecedented case

“Precedence,” as well as following or overturning precedents, is not limited to what is decided in new cases. It is also concerns the adherence to established principles of judicial jurisprudence. Without both kinds of precedence, there is no limit to the power of the judiciary…

Thus, the overall precedence score in Windsor:  It was not a case or controversy because the supposed defender of federal tax law, the Obama Administration’s Department of Justice, agreed with and procedurally cooperated with the plaintiff, as did the Court. Plaintiff Windsor did not have standing to challenge federal tax law in a usually-forbidden “taxpayer suit” because by the same rationale argued by her, any taxpayer would have standing to file a constitutional challenge to any federal law at any time for any reason. Because there was no constitutional basis for the Windsor decision. Justice Kennedy had to invent constitutional sexual-liberty and us-v.-them-homophobia doctrines based on his two opinions in Romer and Lawrence.  In addition, and as accurately predicted by Justice Scalia in his Lawrence dissent, Justice Kennedy in Windsor repudiated his promise in Lawrence that the Lawrence decision would not lead directly to a revision of marriage. In overturning the overwhelmingly-passed DOMA by a 5-4 vote, the Court declared unconstitutional a comprehensive pubic law according to which the Congress had defined not only itself but also the society that it was providing for by legislation. The Court in Windsor usurped unto itself the lawmaking and taxing authorities of the legislature, the two powers together that are the essence of that branch of government.

Windsor: American history’s most unprecedented case.

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Editor’s Note: The featured image is “The Pleading Lawyer” (1846), by Honoré Daumier.

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