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DOMA, Prop 8, and Justice Scalia’s intemperate dissent

Laurence H. Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School.
Today’s decisions striking down the key provision of DOMA and dismissing for want of standing the appeal from the district court’s invalidation of California’s Prop 8 were not at all surprising. Many of us predicted both outcomes, although there were some who imagined that Justice Kennedy would rely even more heavily on a federalism rationale than he ended up doing. His conclusion for the Court – joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan – in United States v. Windsor that DOMA deprived gay couples of equal liberty and basic dignity without anything resembling a sufficient justification was a welcome and entirely justifiable one. And the conclusion of Chief Justice Roberts’ majority opinion in Hollingsworth v. Perry – joined by the unlikely coalition of Justices Scalia, Ginsburg, Breyer, and Kagan – that the private group seeking to appeal from the district court’s invalidation of California’s Prop 8 lacked standing to do so, while anything but legally obvious, was at least defensible – and again quite predictable.

The pair of decisions taken together left the most contentious questions about same-sex marriage for the political process to continue grappling with – postponing to another day, when the generational wave that is moving this question to an inevitable conclusion has proceeded still further, the Court’s next encounter with the questions of equal human liberty and dignity that lie at its constitutional core. Both decisions, handed down by very different 5-4 majorities, seem to me worthy of celebration. I focus here only on the Court’s invalidation of Section 3 of DOMA in United States v. Windsor.

That invalidation of Section 3 followed directly and indeed easily from the Court’s decision a decade ago today in Lawrence v. Texas. Joshua Matz and I argued as much in the Maryland Law Review last October.

Indeed, if anything, today’s invalidation was over-determined, given the added federalism spin that propelled it. For Congress to carve same-sex couples and only such couples out of the federal government’s nearly universal deference to state definitions of marriage could not withstand anything like the meaningful judicial scrutiny that all but the most garden-variety exercises in line-drawing – exercises lacking even a whif of insult to vulnerable groups or to basic American traditions – demand.

But Justice Scalia – in a portion of his dissent that Chief Justice Roberts conspicuously declined to join – couldn’t resist the temptation to use the occasion to insult the Court’s majority, and Justice Kennedy in particular, in essentially ad hominem (and ad feminem) terms. I write this comment principally to highlight the extraordinary character of this particularly vitriolic and internally inconsistent dissent.

Having disagreed with the majority about the existence of a live case or controversy within the meaning of Article III (inasmuch as the United States did not appeal the lower court’s invalidation of the relevant federal statute), Justice Scalia went out of his way to opine at great length and with his characteristic vigor about how the Court should have decided the very controversy that he says wasn’t really before it, offering his view of the merits without the modesty that he insisted was the hallmark of proper adjudication. To accuse the majority of arrogance and then reach the merits after saying that the Court lacks jurisdiction to address the case requires no small dose of chutzpah.

Justice Scalia accused the majority of “fooling . . . readers . . . into thinking that this is a federalism opinion” while in the end relying only on the Due Process Clause of the Fifth Amendment as a textual source of decision. But Justice Scalia didn’t so much as consider the possibility, one embraced not just by today’s majority but by no less a jurist than Michael Boudin as Chief Judge of the First Circuit in his earlier decision invalidating DOMA’s Section 3 on very similar grounds, that considerations of federalism might point to a particularly rigorous examination of the purported justifications for a measure like Section 3.

Justice Scalia insisted that principles of equality and of substantive liberty implicit in the Fifth Amendment’s Due Process Clause were not truly the textual basis of today’s majority’s ruling on the merits. But his only basis for that sly suggestion was his supposition that the majority was hiding the ball (hiding it from whom?) by declining to “utter[] the dread words ‘substantive due process.’” That the majority was relying not on principles akin to those that led to Lochner and its progeny but, rather, on what the majority claimed – namely, a combination of equal protection principles and precepts of federalism – a combination textually at home in adjudication under the Due Process Clause of the Fifth Amendment, cannot have escaped Justice Scalia’s keen mind. So they must simply have escaped his word processor, mind notwithstanding.

Justice Scalia faulted the majority with having inexcusably accused the Congress that enacted DOMA and the President that signed it of having “hateful hearts” when the majority in truth did no such thing. To say that only anti-gay animus, conscious or otherwise, could coherently account for a measure like Section 3 is not to accuse those who enacted or signed the measure of acting out of homophobic animus.

Justice Scalia snarkily said that his fellow Justices showed “real cheek” when they assured the nation that the constitutionality of state laws banning same-sex marriage was not before the Court in this case when, in Scalia’s view, those state laws could not be upheld consistent with the premises of Windsor. But surely Justice Scalia recognizes that the implications of carefully cabined precedents like Windsor is always up for debate, invariably influenced by the spirit of the times in which later stages of that debate reach the Court.

Justice Scalia invited “State and lower federal courts” to “take the Court at its word and distinguish away” when others urge that laws barring same-sex marriage at the state level are distinguishable from the DOMA provision that the Court struck down. But, at the very same time, the Justice insisted that any such efforts at distinction would fly in the face of the legal principles underlying today’s decision in Windsor and concluded that, “[a]s far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.”

Where to begin with that tidbit? For starters, calling on state and lower federal courts to treat the Windsor opinion as no broader than it claimed to be even as one charges the Court that penned Windsor with charting an unbreakable path to full same-sex-marriage rights is, at the very least, an exercise in jurisprudential cynicism. Either Justice Scalia expects and wants tribunals beneath his pay grade to shut their eyes to what he regards as the inescapable implications of Supreme Court precedents, or he anticipates that they will, and suggests that they should, follow the logic of those precedents where that logic leads notwithstanding the Court’s suggestions that the issue remains entirely open. Either way, he is contradicting himself.

Beyond that troublesome cynicism, there is the transparently calculated blurring of the distinction between analysis of where the arc of the law logically points and prediction of where that arc will in fact land. It’s hard not to hear in Scalia’s remarks today an echo of the prediction he made in his equally heated dissent from Lawrence ten years ago – that, having struck down the anti-sodomy law of Texas on the basis that its 2003 its opinion invoked, the Court could not logically stop short of invalidating as an insult to equal dignity and liberty any state law limiting marriage to same-sex couples. When Justice Scalia made that 2003 prediction, he doubtless recognized that it would be quoted back at him in future challenges to such state laws, at which point he doubtless intended to underscore the Lawrence majority’s own insistence that it was not yet resolving the validity of such challenges.

So too today. In predicting that the opinion joined by the five Justices comprising today’s Windsor majority would invariably lead to the invalidation of state efforts to limit lawful marriage to opposite-sex couples, Justice Scalia was engaging in a bait-and-switch unworthy of so serious and smart a jurist, one who often displays a principled side that even those who dislike his results would be hard-pressed not to admire.

The bait-and-switch of course arises out of the inescapable reality, one that Scalia appreciates as well as anyone, that what the Supreme Court does has always been and must remain a delicate blend of principle and politics. Justice Scalia knows all too well that the decision of whether the time is ripe for federal judges to move forward on a matter as politically, culturally, and religiously explosive as same-sex marriage is impossible for any judge to make as a matter of analytical reason alone. So to say that all we need do is listen and wait for the other shoe to drop is to falsify what Justice Scalia recognizes the world is all about. In the fullness of time, when the nationwide validity of a statewide ban akin to Proposition 8 reaches the Court without the standing problems that enabled the Court to punt on this occasion, if Justice Scalia is still a member of that tribunal, we can all be sure that he will not treat the Windsor majority opinion as controlling precedent for striking down such a ban. To suggest otherwise now is worse than cynical. It is flatly false. And it gives the wrong signal to lower courts, both state and federal. It suggests to them that they ought to feel free to track what the Supreme Court says rather than to fathom, and then do their best to follow, the logic of what it does.


Recommended Citation: Larry Tribe, DOMA, Prop 8, and Justice Scalia’s intemperate dissent, SCOTUSblog (Jun. 26, 2013, 2:24 PM),