Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, June 26, 2013

Windsor & Perry

It's interesting how, in late June, most bloggers and most of my Facebook friends become experts in Constitutional Law!  In any event, like many MOJ-ers I'm sure, I'm reading and thinking about today's SSM cases.  I tend, like Chief Justice Roberts, to be something of a hawk on standing, and so I'm bothered -- at least for now -- by what strikes me as the awkward juxtaposition of the "jurisdiction in Windsor but no standing in Perry" result.  But, I assume that Catholic legal theory has little to say about what ought to be the bounds of the Court's jurisdiction so I'll leave all that alone.

Reading Justice Kennedy's opinion -- which strikes me as a mixture of a "federalism" argument and a Romer v. Evans "no amimus" argument -- it strikes me that the language and rhetoric will be very helpful to those who are arguing that the Constitution, political morality, and decency require the equal treatment and legal recognition of same-sex marriages.  His claim that the opinion is limited in its application to those same-sex marriages that have already been recognized by state law does not strike me as likely to have much impact. If what Justice Kennedy says is correct, then it seems to me that it has to follow, in the next case and in future legislative debates, that those states -- and those religious communities -- that reject the revisionist approach to marriage are appropriately regarded as backward and bigoted, and not to be respected or accommodated.  We'll see.


Garnett, Rick | Permalink


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One need not be an expert in Constitutional Law to recognize that Love requires respect for the inherent personal and relational Dignity of all persons in public as well as in private. What Justice Kennedy has done with his opinion is not just about redefining marriage, it is about redefining the essence of Love.

Posted by: Nancy | Jun 26, 2013 2:30:35 PM

I don't know how it would fall, but Catholic principles might be sympathetic to agency principles where freestanding individuals don't have standing to defend in the way sought in the Prop 8 case while agents like the executive or legislature do. As to Windsor, yes, ultimately same sex marriage will be protected nation-wide, though DOMA is specifically a problem because it inhibits state discretion.

The "revisionist approach" there along with other changes in the nature of marriage (racial, sexual roles, divorce, sex outside of marriage etc.) will win eventually. So, I agree in that respect.

Posted by: Joe | Jun 26, 2013 3:10:53 PM

Professor, can you square J. Scalia's dissent in Perry with his agreement in Shelby?

In Perry, he wrote that the majority’s opinion "is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every-where 'primary' in its role." (p2 of dissent, slip opinion)

Yet in Shelby, the majority (including J. Scalia) asserted its judicial supremacy ver the people’s Representatives in Congress and the Executive to invalidate part of the VRA.

Do you think Scalia's dissent in Perry is more than posturing?

sean s.

Posted by: sean samis | Jun 26, 2013 3:12:36 PM

The point of part I of Justice Scalia's dissent in Perry is that the power that we now call "judicial review" (a term coined by an academic in the early 20th century) is not some freestanding power of the judiciary, but rather incidental to the exercise of judicial power that, in the United States, extends only to the resolution of a "case" or "controversy." The Court's decision in Windsor expanded the operative conception of "case" in a way that Shelby County did not. I think all nine Justices would agree that the procedural posture of Windsor presented special concerns about the scope of the Supreme Court's jurisdiction that Shelby County did not. The differences among the Justices relate to how they assess those special concerns.

In considering the two cases of Windsor and Shelby County together, more interesting to me is the position of someone like Justice Ginsburg, who criticizes the Court in her Shelby County dissent for declaring a provision of the Voting Rights Act facially unconstitutional (i.e. unconstitutional in all its applications) but has no problem joining an opinion that does the very same thing for a provision of the Defense of Marriage Act. There is not necessarily an incompatibility in these positions. Some doctrinal tests result in decisions of invalidity in all applications of a statutory provision. But then the lack of restraint charge in the Shelby County dissent really reduces to a claim that there ought to be a different constitutional rule, one that permits some applications of a partially unconstitutional law. I'm sympathetic to that in the Shelby County case (see Justice Brennan's opinion in Raines for one way to make it work), even though the coverage formula invites consideration as a formula.

Posted by: Kevin C. Walsh | Jun 26, 2013 3:50:55 PM

“The Court's decision in Windsor expanded the operative conception of ‘case’ in a way that Shelby County did not.” That I do not understand.

J. Ginsburg’s dissent in Shelby County seems reasonable to me. I still don’t know what provision of the Constitution is violated by the part of the VRA struck down by the Court. Indeed, as other commentators have noticed, the rationale seems to be that the Court struck down the VRA **because* *it* *worked** and was in the Court’s opinion no longer necessary. That is a quintessentially legislative determination; the Court including Scalia substituted their opinions for that of the Congress. In contrast, DOMA violates Equal Protection; a specific enough reason to over-turn it; and Scalia objected to the Court deciding what the law was and reaching its conclusion.

sean s.

Posted by: sean samis | Jun 26, 2013 4:38:12 PM

correction; The Windsor court found a violation of the 5th amendment's due process clause. EP was not the prime basis of their finding.

sean s.

Posted by: sean samis | Jun 26, 2013 4:45:50 PM

The "expansion" in Windsor is debatable though it does raise special issues. Scalia's language is still exaggerated and if we are concerned about the USSC being "primary," its result in Shelby very well can be seen as worse.

Ginsburg, like other justices, sometimes think facial reversals are sound, sometimes not. She disagrees on the merits. Also, it's interesting (I looked it up & 1924 is cited as the date) the term is relatively new, but the concept of "judicial review" is older.

Posted by: Joe | Jun 26, 2013 4:49:23 PM

Actually, in this case, like Roe v Wade, The Supreme Court's procedural error was their denial of the personal and relational essence of the human person, the self evident truth that regardless of ancestry or location, every son or daughter of a human person from the moment of conception, has been created in The Image of God, equal in Dignity while being complementary as male and female. We are and have always been, sons, daughters, brothers, sisters, husbands, wives, fathers, mothers...

Posted by: Nancy | Jun 26, 2013 4:55:53 PM

Why is that a procedural error?

Posted by: Paul Horwitz | Jun 26, 2013 5:03:45 PM

How can one determine if due process was followed if they deny the inherent essence of the human person, to begin with?

Posted by: Nancy | Jun 26, 2013 5:08:42 PM

Yes, okay, but that's substantive, not procedural.

Posted by: Paul Horwitz | Jun 26, 2013 5:14:29 PM

Either way, one must begin with the truth about the inherent essence of the human person.

Posted by: Nancy | Jun 26, 2013 5:22:56 PM

Paul, you should know better than to distinguish between substance and procedure. That went out of fashion long ago.

Posted by: Marc DeGirolami | Jun 26, 2013 5:25:27 PM

As for “those states -- and those religious communities -- that reject the revisionist approach to marriage” to what extent they are “respected or accommodated” will depend on what accommodations they request and how well they respect the law. That is a topic talked into exhaustion on this site. If they disrespect others, they earn no respect for themselves. If they are unwilling to accommodate the rights of others, their rights are jeopardized also. Proponents and beneficiaries of same-sex marriage have religious rights too.

sean s.

Posted by: sean samis | Jun 26, 2013 5:27:18 PM

Sean, one cannot be disrespecting any person if one desires that all persons be treated with Dignity and respect in public as well as in private.

Posted by: Nancy | Jun 26, 2013 7:26:26 PM

To give Shelby its due, the ruling concerns the "appropriate" legislation Congress passed here pursuant to the 14A and 15A.

This would entail a remedy that fits the state infringement of rights, including one that does not infringe on the "equality of states," an underlining constitutional principle (all principles are not expressly stated, but various things, including the 10A has been interpreted to imply this ... I think the dissent is correct, but just playing devil's advocate).

The majority held that the provision in question is not a close enough fit given it was based on old data and conditions.

Posted by: Joe | Jun 26, 2013 8:11:25 PM

"'The Court's decision in Windsor expanded the operative conception of ‘case’ in a way that Shelby County did not.' That I do not understand."

This pre-decision post and comment thread at PrawfsBlawg may be of some help: http://prawfsblawg.blogs.com/prawfsblawg/2013/06/dismissing-the-doma-case.html#comments. I think Will Baude's response to Marty Lederman's query is particularly clear.

Posted by: Kevin C. Walsh | Jun 26, 2013 9:52:28 PM


I checked out your link and re-read Scalia’s dissent; the Court’s decision to accept jurisdiction has precedent and does not “expand the operative conception of ‘case’”; it merely failed to shrink that conception as some (like Scalia) want.

There is much uncertainty even in the sources you cited, Kevin. Perhaps jurisdiction should not have been taken; that is arguable. But Scalia’s hyperbolic language indicates an angry petulance at the daring of others to disagree with him. It is quite unbecoming.

More interesting: Scalia says he cannot find a basis for taking jurisdiction, but I cannot find a constitutional provision for declaring the VRA unconstitutional; something that apparently does not trouble Scalia.

sean s.

Posted by: sean samis | Jun 27, 2013 11:00:14 AM


Breitbart misses a point (or makes it unclear). Once the Supreme Court decision is final (in 25 days) the Ninth Circuit will send the case back to the District Court which issued an Injunction against the enforcement of Prop 8. California will not be able to enforce that law and same-sex couples will be free to get married LEGALLY in California. Prop 8 will be the law, but California cannot enforce it.

What may be up in the air is what happens if a clerk of courts refuses to issue a license to a same-sex couple. That would create a case to wend its way through the California Courts.

It may be that some in California will try to challenge the injunction itself, which is problematic if the State refuses to defend Prop 8.

By the end of July–barring something unforeseen–same-sex couples will be able to marry legally in California. That is a Good Thing.

sean s.

Posted by: sean samis | Jun 27, 2013 11:14:07 AM

That someone could be a person who overcame the desire to engage in same-sex sexual acts because they recognized that men and women are designed in such a way that it is impossible to engage in same-sex sexual acts without demeaning the inherent personal and relational Dignity of those persons engaging in sexual acts that cause physical, psychological, emotional, and spiritual harm.

Posted by: Nancy | Jun 27, 2013 1:39:49 PM

Fr. Araujo’s comment above (“Navigating the Thicket of Hollingsworth v. Perry”) raises an interesting point I had not thought of. Since it allows no comments there, let me put this here.

In INS v. Chadha the Supreme Court held that, as authors of legislation, Congress has standing to defend its enactments if the Executive fails to do so. If I got that wrong, please do correct me.

One would assume that, by analogy, State Legislatures would have the same standing to defend their enactments in the absence of their Executive’s defense. I am not sure if this analogy is correct, but it seems plausible. Is there case law on point?

There is no federal Initiative or Referendum (I/R), but in many States the people are empowered through I/R to act as legislators. If State legislators enjoy the "Chadha" privilege (if I may call it that) would not the people of a State also enjoy that privilege to defend a law enacted through I/R? Seems plausible, and this would give those who initiated Prop 8 standing in Hollingsworth v. Perry to defend it in the Highest Court.

There is one catch however: the “Chadha” privilege applies only to Congress, not to MEMBERS of Congress. Standing requires official delegation of authority from one or both houses. Members acting on their own do not have standing. Similarly, one would expect a State Legislature would need to authorize defense of a state enactment.

Who authorized the petitioner/proponents (as Araujo refers to them) who tried to defend Prop 8? The legislature of California did not, and I am not aware of any other actual popular act to authorize their acting on behalf of Prop 8. Would a California-wide plebiscite have been able to grant such standing?

sean s.

Posted by: sean samis | Jun 27, 2013 2:56:05 PM

The CA Supreme Court determined that state law authorized the petitioners here to defend the proposition during the appellate process, but the majority in Hollingsworth v. Perry held that for purposes of Art. III federal court standing, that wasn't enough. They were still just on par with the general public w/o a specific injury.

A state legislator (a matter addressed in Karcher v. May) could have a particular interest -- the legislature is a clear representative of the state and has meets certain "agency" requirements. See also, Windsor, where Congress/BLAG stepped in when the Obama Administration did not defend the law.

A state might have a more liberal view for state purposes, including CA to defend Prop 8 in state court, but the majority held the petitioners here didn't meet federal standing. Also, a state might appoint someone with the job of defending ballot measures. Like a "special prosecutor," possibly the person might be independent from the AG and the state could thus not get out of not appealing such measures.

But, the people of CA didn't do that. Walter Dellinger set forth in his brief various approaches where the people can defend ballot measures without granting standing here. They also had a chance to vote against a governor and AG who promised not to defend Prop 8. Again, they did not.

Posted by: Joe | Jun 27, 2013 4:24:44 PM

Once the State no longer recognizes that in order to be married, it is no longer necessary to exist in relationship as husband and wife, and thus if one so desires, any relationship can be defined as marriage, the obvious harm would that the State, in declaring that any relationship can be defined as marriage, no longer recognizes the validity of a valid marriage.

Posted by: Nancy | Jul 17, 2013 10:44:05 AM