Tag Archives: supreme court

The DOMA Oral Arguments

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When Matt and I get married this fall, will we just have a skim-milk marriage? Or will our country’s government treat us equally?

Today’s oral arguments in the DOMA case leave me cautiously optimistic — moreso than yesterday’s Prop 8 arguments. There seems to be a consensus among the experts that DOMA Section 3 is doomed, precisely and only because Justice Kennedy evidently believes that it violates the power of states to define marriage. Only four justices (Ginsburg, Breyer, Sotomayor, Kagan) appear willing to overturn it on grounds of equal protection; Kennedy would provide the crucial fifth vote.

Roberts and Scalia also brought up federalism, but in a curious way. They asked: if the federal government is not allowed to exclude same-sex couples from the federal definition of marriage, does that mean it’s not allowed to include them, either? Wouldn’t that, too, violate states’ rights to define marriage? And if it is okay for the federal government to include them, then why isn’t it okay for the federal government to exclude them?

It was an odd perversion of the principle of federalism. The answer to their question requires asking: what’s the point of federalism in the first place?

Federalism is usually seen not as an end in itself, but as a vehicle to protect individual liberty — usually, negative liberty (“freedom from X”). How does it violate principles of liberty for the federal government to extend federal marriage benefits to same-sex couples? In other words, how does that interfere with anybody’s rights? On the other hand, when the federal government withholds those benefits from same-sex couples, as it does right now, it restricts positive liberty. (More here.) Our government was structured in such a way as to further certain principles, but Scalia and Roberts sounded like they were more interested in sophistic thought games than in the real-life implications of DOMA on these principles.

I thought Roberts, for one, would be more skeptical of DOMA, and I’m kind of disappointed in him. I guess the health care got all of our hopes up.

Then there was Alito, who twisted the principle of equal protection. Alito raised concerns that getting rid of DOMA would itself cause equal protection problems: what if a surviving same-sex spouse in New York doesn’t have to pay estate taxes because New York recognizes same-sex marriage, but a spouse in North Carolina does, because North Carolina doesn’t recognize those marriages? Doesn’t that raise equal protection concerns, he asked?

The answer is: isn’t that North Carolina’s fault, because it doesn’t recognize same-sex marriage, rather than the federal government’s fault, since the federal government just defers to state definitions of marriage? Why wouldn’t the remedy be to shield all surviving same-sex spouses nationwide from the estate tax, rather than make all of them pay it? It seems odd and cruel to say that it’s better not to provide benefits to any married same-sex couples rather than provide benefits to all of them. It basically holds couples who live in same-sex marriage states hostage to all the other states. How is that okay?

Despite Alito’s questions, I still see him as a possible vote to strike down DOMA. Maybe not very likely, but still possible.

Thomas, of course, said nothing. But I wonder if he, too, might strike down DOMA on federalism grounds. I’m not counting on it, but not totally ruling it out either.

So that leaves the four liberals plus Kennedy. States’ rights isn’t the reason I’d prefer for striking down DOMA, but I’d certainly take it.

And now the long three-month wait to see whether Matt and I get to have a whole-milk marriage.

Supreme Court on Westboro Baptist Church

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This morning the Supreme Court ruled that Fred Phelps and his Westboro Baptist “God Hates Fags” cult have a First Amendment right to protest at funerals, as long as they stay in legally designated areas and are quiet and nonviolent. Westboro had picketed the funeral of a soldier, Matthew Snyder, who was killed in Iraq. Snyder’s father then sued Westboro for damages and was awarded $2.1 million. The Supreme Court overturned the verdict.

As loathsome and despicable as the Westboro folks are, I agree with the Court on this. I tend to take a pretty strong position on the freedom of speech.

Surprisingly, the decision of the Court was not unanimous. One justice dissented: Justice Alito. He argues that Westboro was properly liable for intentional infliction of emotional distress.

At first I thought, wow, Alito and I have something in common: we both hate Westboro! At least Alito’s heart is in the right place!

But, no. This paragraph from his dissent really pisses me off:

Other signs would most naturally have been understood as suggesting—falsely—that Matthew was gay. Homosexuality was the theme of many of the signs. There were signs reading “God Hates Fags,” “Semper Fi Fags,” “Fags Doom Nations,” and “Fag Troops.” […] Another placard depicted two men engaging in anal intercourse. A reasonable bystander seeing those signs would have likely concluded that they were meant to suggest that the deceased was a homosexual.

Oh, heaven forbid that it should be implied that someone is gay, even falsely! What a horrible defamation.

A few paragraphs later, we see this:

In light of this evidence, it is abundantly clear that respondents, going far beyond commentary on matters of public concern, specifically attacked Matthew Snyder because (1) he was a Catholic and (2) he was a member of the United States military. … While commentary on the Catholic Church or the United States military constitutes speech on matters of public concern, speech regarding Matthew Snyder’s purely private conduct does not.

I wonder if that’s the real reason Alito was so bothered by Westboro — because of their anti-Catholic bias? There are six Catholics on the Supreme Court, and five of them didn’t let this get to them. Only Alito, who can’t seem to control himself at a State of the Union Address, took it so personally that it warped his judgment of the First Amendment.