There are passages in Chief Justice John Roberts’s opinion upholding the constitutionality of the Affordable Care Act that are beautiful in their view of the role of the Supreme Court. But they are also alarming in what they might mean for other acts of Congress that might face court scrutiny. I’m thinking about the so-called Defense of Marriage Act (DOMA).
Two cases that could have an impact on the 1996 law passed by Congress and signed by President Clinton are headed to the nine justices. In Perry v. Schwarzenegger, California’s voter-approved constitutional ban of same-sex marriage (Proposition 8) was declared unconstitutional by a panel of the Ninth Circuit Court of Appeals in February.The full court reaffirmed that ruling last month when it rejected a request to have the full Ninth Circuit review that decision.
In Gill v. Office of Personnel Management and Massachusetts v. United States , the First Circuit Court of Appeals ruled in May that DOMA was unconstitutional because it denied same-sex married couples who were married in Massachusetts, where it is legal, the same federal benefits granted to heterosexual married couples. In both cases, there are questions of DOMA’s violation of the Constitution’s guarantee of equal protection under the law.
President Obama and the Justice Department certainly think DOMA is unconstitutional. The administration stopped defending the discriminatory statute in court last year. But House Republicans insist on fighting to preserve it. Late Friday afternoon, the Bipartisan Legal Advisory Group (BLAG) sent a letter to the Supreme Court asking it to review the First Circuit’s decision.
We won’t find out until the court’s new term whether it will take up the Massachusetts or Prop 8 case. But let me point out why such a Supreme review has me a bit concerned in the wake of Roberts’s historic ruling.
The first six pages of National Federation of Independent Business v. Sebelius are an eloquent statement of the court’s power in settling disputes between those who like a particular law and those who loathe it. The passage that raised red flags for me is this:
Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders....Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
Reading this sent a shiver right through me. By this logic, the Roberts Court would be disinclined to overturn DOMA. And the fact that 30 states have constitutional amendments or statutes banning same-sex marriage — North Carolina being the most recent — would seem to strengthen the court’s view that “it is not our job to protect the people from the consequences of their political choices,” especially when those choices have been made abundantly and repeatedly clear.
But Evan Wolfson, founder and president of Freedom to Marry, tried to walk me back from the ledge. “I think that language is pretty standard boilerplate. I wouldn’t read too much into that,” he wrote in an e-mail last week. Still, I pressed. Could all this deference to the authority of Congress also be used to uphold DOMA?
“It certainly is the kind of language that could be used to ill effect, just as it was used (barely) to good effect here,” Wolfson replied. “But I wouldn’t see it as particularly indicative or at all novel. It’s what judges say (or ignore, see [Justice Anthony] Kennedy) when they want to do something. It doesn’t tell us anything about how the court will rule on DOMA. And even if it did, arguably Kennedy and Roberts might find themselves switching roles in that case, as we think more likely anyway.”
Ruth Marcus raised a good point with me last week that was easy to forget in my near-panic. There is no right of the majority to impinge on the rights of the minority in the Constitution. And while the Supreme Court has never ruled on the question of whether same-sex couples have a Constitutional right to marry, Justice Kennedy went a long way to validating the relationships of gay male and lesbian couples in his majority opinion in Lawrence v. Texas , the landmark 2003 decision that struck down anti-sodomy laws that criminalized intimate homosexual conduct as a violation of the Fourteenth Amendment.
The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.
As much as the Roberts health-care opinion wigged me out, there was a silver lining. It comes right after the alarming paragraph about deferring to Congress.
Our deference in matters of policy cannot, however, become abdication in matters of law.... Our respect for Congress’s policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed.... And there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits.
DOMA clearly transgresses those limits. The president thinks so. As does the U. S. attorney general. All that’s missing is for the Supreme Court to deem it unconstitutional so that the Fourteenth Amendment can apply to same-sex couples.
[Update, 11:30 a.m.: The copy above was edited to make clear that DOMA could be impacted — not overturned — by two cases making their way to the Supreme Court. ]