The following is an article I wrote in February of 2005 about a debate on foreign law influences upon the American legal system between originalist Justice Antonin Scalia and activist Justice Stephen Breyer. I hope you find it illuminating.
WHO WILL SPEAK FOR YOU?
By Edward L. Daley
A few weeks ago I was watching a program on C-Span pertaining to the impact of foreign court opinions upon the U.S. justice system. The primary participants in the discussion were Supreme Court Justices Antonin Scalia and Stephen Breyer, and the event took place at the American University Law School in Washington D.C.
The debate revolved around questions asked by a moderator named Professor Norman Dorsen, and the first multi-part question asked was, “When we talk about the use of foreign court decisions in U.S. Constitutional cases, what body of foreign law are we talking about? Are we limiting this to foreign constitutional law? What about cases involving international law, such as the interpretation of treaties, including treaties to which the U.S. is a party? When we talk about the use of foreign court decisions in U.S. law, do we mean them to be authority, or persuasive, or rhetorical? If, for example, foreign court decisions are not understood to be precedent in U.S. Constitutional cases, are they nevertheless able to strengthen the sense that U.S. law assures a common moral and legal framework with the rest of the world? If this is so, is that in order to strengthen the legitimacy of a decision within the U.S., or to strengthen a decision’s legitimacy in the rest of the world?”
Some question, huh? I don’t think I’d be comfortable trying to answer it all in one fell swoop, and apparently neither did the two justices. Justice Scalia began his reply by stating that most of the parts of it should be posed to Justice Breyer, simply because Scalia does not use foreign law in the interpretation of the U.S. Constitution.
He stated that he will use it when interpreting a treaty, because treaties are based upon a mutual understanding of the law by the signatories thereof. That seemed like a no-brainer to me, and the point was not argued by Breyer.
Scalia went on to say that, aside from that, he refuses to use foreign decisions in Constitutional law. He argued that some justices refer to foreign law because they want to feel assured that we have the same “moral and legal framework as the rest of the world.” He then pointed out, quite matter-of-factly, that we don’t have the same moral and legal framework, and we never have.
He continued by referring to the Federalist Papers, saying that they are full of statements which make it clear that our founding fathers had little respect for the laws of European countries in that day and age, citing a passage by James Madison to that effect. He then asked the rhetorical question, should we be willing to change our laws based upon the fact that many of them are not in step with the vast majority of foreign law decisions, mentioning the issues of abortion on demand, and the exclusionary rule relative to ‘Miranda’ as examples.
He went on to ask the question, why haven’t we changed these laws if the court feels we should use foreign law… or do we just use foreign law selectively, whenever it agrees with what an individual justice would like a particular case to say? He then asked what the criterion is for citing foreign law, if doing so is not meant to be authoritative.
Justice Breyer responded by saying, among other things, that law emerges from conversations among law practitioners, law students, and academics. He recounted an event at which he was first confronted with the question of whether or not foreign law decisions should be considered by U.S. courts. He described a past seminar he’d attended with various judges and law makers wherein a Congressman had remarked that he thought it was a terrible idea to use foreign law in U.S. court decisions.
Breyer reflected that he’d told the Congressman “Of course foreign law doesn’t bind us in Constitutional law. Of course not.” But, he added, these [foreign justices] are human beings who often have problems which are similar to our own.
He mentioned that the societies about which these foreign decisions are concerned, are becoming more and more democratic, and that in a case which is similar to one he might face as a Supreme Court Justice, “why don’t I read what he says, if it’s similar enough?” Apparently the Congressman he was speaking to at the time said fine, go ahead and read it, just don’t cite it in your legal opinion.
Breyer’s response to this remark had been that since foreign courts cite our Supreme Court’s findings in their decisions, he didn’t see anything wrong with citing theirs in his. He added that by doing so, we might actually lend credibility to their laws, or as he put it, “give them a leg up.” The Congressman’s response was that Justice Breyer should simply write them a letter of approval instead, if he felt that way.
At that point, Breyer seemed to stall, relating that the Congressman had “made a point,” and then failing to explain why he felt that position wasn’t essentially correct. He went on to refer to Justice Scalia’s implication that we do not understand enough about any particular foreign decision to cite it responsibly, asking, “how do we know we cite both sides” of an argument in foreign law cases? “How do we know we look for everything?” His answer to both of those questions was that such problems arise in every sort of citation. “A judge can do what he’s supposed to do, or not,” he continued, “and we hope they do what they’re supposed to do.”
This is where he lost me, and, apparently, where he lost Justice Scalia as well. After all, the fact that American justices face decisions without looking at every possible viewpoint available in the written law, has nothing to do with the fact that foreign law systems are often completely alien to our own. It’s not a question of whether or not we are able to see every bit of available information, but rather that the systems by which other countries arrive at legal decisions are usually not very similar to ours. Also, as Scalia pointed out, other legal systems may only have adopted part of a law that has originated in the U.S. (e.g. Miranda), and ignored other parts (e.g. the exclusionary rule) that are just as important to the fundamental principle underlying that law.
I found it interesting that Justice Breyer first announced that foreign law is “of course” not binding in Constitutional law, yet followed up that point by giving reasons, ostensibly, why it should be.
Justice Scalia seemed just as confused as I was by certain points that Breyer had made, beginning his retort by declaring, “I don’t know what it means to express confidence that judges will do what they ought to do, after having read the foreign law. My problem is that I don’t know what they ought to do. What is it that they ought to do? You have to ask yourselves, why is it that foreign law would be relevant to what an American judge does when he interprets – INTERPRETS – not writes [the law]… it [foreign law] is very useful in devising a Constitution, but why is it useful in interpreting one?”
Scalia then explained his basic theory as it relates to the interpretation of the Constitution, saying that he tries to understand what it means, and what society understood it to mean when it was adopted, adding that his philosophy used to be orthodoxy prior to the 1940s. He stated that foreign law is irrelevant to anyone who embraces that philosophy, with the exception of old English law, because of the fact that many of our legal definitions were taken from that to begin with.
He went on to relate two other approaches to interpreting the Constitution. The first, he explained, was the notion that the Constitution doesn’t mean what it meant when it was first ratified, but that it changes from era to era to conform to, as Scalia then quoted, “the evolving standards of decency that mark the progress of a maturing society.” – Troy v. Dulles, 356 U.S. 86, 101
At that point he mentioned that he detests that phrase, arguing that societies don’t necessarily mature, and that “sometimes they rot.” However, he opined, even if you buy into that theory, you are still primarily concerned with the standards of decency of Americans, not foreigners, and that the only way a person would ever be willing to accept the standards of other countries as being applicable to our standards, is if that individual espoused a third way of interpreting the Constitution.
That third philosophical approach, Scalia continued, says “I am not looking for the evolving standards of decency of American society, I’m looking for what is the best answer in my mind, as an intelligent judge. And for that purpose, I look to other intelligent people, and I talk sometimes about conversations with judges, and lawyers, and law students. Do you [the law students in the audience] think you’re representative of American society? Do you not realize you are a small, cream at the top, and that your views on innumerable things are not the views of America at large? And doesn’t it seem somewhat arrogant of you to say I can make up what the moral values of America should be on all sorts of issues?”
The whole time he was saying this, Breyer looked as if he’d just swallowed a prune pit, since he clearly understood (as did I, and probably everyone else watching) that Scalia had just implied he was arrogant. Once Justice Scalia had concluded by saying that he did not wish to undertake the responsibility of deciding what is moral and what isn’t for all of society, Justice Breyer commented, “I think that’s pretty good.”
“It’s really because I think, and I think many judges think, that your own moral views are not the answer, that people look other places for trying to find out – how to find answers,” he added. Yet once again his statement didn’t have any bearing upon the issue raised. The question isn’t whether one should look for answers as to what may be the morally right thing to do, but rather, where it is they’re looking!
Breyer pointed out that there is “nothing in ‘Blackstone,’ ‘Bracton’ or even ‘King Arthur,’ that says that cruel and unusual punishment – to determine that – you cannot look, except to England, or except to the United States… So, there’s nothing barring me.” This statement is a dead giveaway that Breyer believes it is reasonable to define morality in America based upon what other countries think, or upon what members of the legal profession think. Does it really need to be written that American moral issues should be decided by the American citizenry? Isn’t that just plain common sense?
Apparently Justice Breyer doesn’t think so. Even though he goes to the trouble of saying once again that he doesn’t look to himself to determine the answers to moral questions within the law, the undercurrent running throughout his remarks is that he’s willing to let someone other than the American people make the call.
“But I’m thinking, Well, on this kind of an issue you’re asking a human question, and the Americans are human – and so is everybody else,” Breyer states, “and I don’t know, it doesn’t determine it, but it’s an effort to reach out beyond myself to see how other people have done… So I’d have to say I’d rather have the uncertainties and I’d rather have the judge understanding that he’s looking but it’s not controlling. And I’d rather have him use it with care, hoping that the judges won’t lack the control to do so. Then I would like to have an absolute rule that says legally never. And the fact that I cannot find such an absolute rule – legally never – even in King Arthur – gives me some cause for hope.”
Hope? Hope of what?
Justice Scalia carried on the conversation by repeating the points he’d made before, discussing in greater detail certain cases in support of his argument, and stating that “One of the difficulties of using foreign law is that you don’t understand what the surrounding jurisprudence is, so that you can say, you know, Russia follows Miranda, but you don’t know that Russia doesn’t have an exclusionary rule.”
He said that it was unfair to compare American death penalty cases, and the issue of whether it is cruel and inhuman for someone to wait a dozen years before being executed, to similar foreign cases. His basic point was that foreign and American cases were not comparable because of the enormous differences in the way each system deals with the death penalty to begin with. The question of what might be considered cruel and unusual in one country would not apply to another for that reason, and, therefore, would be rendered irrelevant.
This argument seemed to be completely lost on Breyer, as was evidenced by the fact that he responded with the following statement: “Well, it’s relevant in the sense that you have a person who’s a judge, who has similar training, who’s trying to, let’s say, apply a similar document, something like cruel and unusual or – there are different words, but they come to roughly the same thing – who has a society that’s somewhat structured like ours.”
At that point Justice Scalia wisely decided to ask the moderator for a new question, and the professor’s response was to say that, “Although you have suggested your view about this, I’m still unclear about what the harm or risk is of considering foreign sources that may bear on problems that are common to both countries. For example, you mentioned the – both of you have mentioned the death penalty. Why shouldn’t U.S. constitutional decisions take account of shifting world standards on such things as the death penalty, on the execution of juveniles, on the execution of the mentally ill? Are we that far from the rest of the world in terms of the way life is lived?”
The first thing I thought after hearing this was WHAT AN IDIOT! However, even though I suspect that Scalia was thinking the same thing, he showed enough restraint to continue the conversation without becoming insulting to his host, and eventually related that in his dissenting opinion regarding a homosexual sodomy case, he’d pointed out that the court had cited only European law. “Of course,” remarked Scalia, “they [the Europeans] said it not by some democratic ballot, but by decree of the European Court of Human Rights, who was, you know, using the same theory that we lawyers and judges and law students – we know what’s moral and what isn’t.”
Breyer attempted to water down the argument, by infusing some mundane legal point into the mix, but the issue’s course was quickly corrected by Scalia when he related that, “it [the matter of selectively citing foreign decisions] lends itself to manipulation. It lends itself – It invites manipulation.” His subsequent remarks on that score were nothing short of eloquent, and were masterfully reproachful of Justice Breyer’s opinion without actually being too insulting to the man personally.
Justice Breyer was quick to change the subject, saying, “Can I go into a different topic? Because I – it’s slightly – it’s still international application. But I’m curious what my colleague thinks of this because I actually do believe, which I’ve said several times, that this is really a very dramatic issue and so forth, but it isn’t really the important issue to me.”
Of course it wasn’t the important issue to him at that point in the conversation. He’d just had his head handed to him, figuratively speaking, and was obviously perplexed as to how he could continue to address Scalia’s line of reasoning without either agreeing with him, or looking like a jackass.
Be that as it may, he then went on to talk about a few cases which were, as he put it, “much less glamorous,” rounding out his comments by asserting, “this world we live in is a world where I think it’s out of date for people to teach about foreign law in a course called ‘foreign law.’ I think it’s in date to teach in contract law or in tort law, because those are the cases we’re getting.”
I must admit that in certain cases relative to contract law, where companies deal with one another internationally, there are foreign law principles which may well permeate the meat of the matter. But the supposition that the more important and far-reaching moral arguments before the U.S. Supreme Court, pertaining to American societal norms and conventions, should necessarily be dependent upon the whims of foreign law decision-makers, merely because such is the case in the aforementioned respects, is ridiculous on its face. But then, that’s just my opinion.
Later on, Mr. Dorsen queried, “The question I have in my own mind is whether this question is a naive question. And that is, rather than looking at foreign courts to say Greece decided our way, the United Kingdom decided our way, X country decided a different way, another country has a different view, rather than thinking about these courts and cases in terms of the results to think about them in terms of the persuasiveness of the opinions, just as a New York court might look at a Montana decision and be influenced not by the result of the Montana court or the Wyoming court or the Illinois court but by the cogency of the arguments, by the depth of the reasoning, by the logic.”
To which Justice Scalia responded, “Well, you’re begging the question. I mean, your question assumes that it is up to the judge to find THE correct answer. And I deny that. I think it is up to the judge to say what the Constitution provided, even if what it provided is not the best answer, even if you think it should be amended. If that’s what it says, that’s what it says.”
Ask yourself why Antonin Scalia would say such a thing. If you understand the role of a judge in the American system of government, the answer should be obvious. It’s not his job to write the law, only to interpret it. Writing law is the job of the legislative and executive branches. Even if he disagrees with the law he’s considering, he has no lawful authority to change it, nor should it be his desire to do so. You see, Judge Scalia understands the fundamental principle behind the words “separation of powers,” and he actually practices what he preaches.
Furthermore, he proves his allegiance to the Constitution, and to the American people when he contends, “And on these Constitutional questions, you’re not going to come up with a right or wrong answer; most of them involve moral sentiments. You can have arguments on one side and on the other, but what you have to ask yourself is what does American society think?” Although the discussion continued for nearly another half hour, nothing was said by anyone present which was more profound than that, so I won’t bother reiterating further.
Suffice it to say that if I were a Supreme Court Justice, I’d ask myself the following questions:
Do judges in the U.S., at any level of jurisprudence, consider the Constitution to be satisfactory or not?
If not, what other nation has exhibited the capacity to improve upon it, or even to approach its standards of excellence in such a way as to be worthy of my consideration of its views?
Should justices of the highest court in the land be allowed to speak for the attitudes of the American people, while simultaneously ignoring them, respectful only of the opinions of elitists from other countries, and/or the American legal intelligencia?
In short, do we really want these people making moral judgments for the rest of us?
I may not be a law professor, an attorney, a judge, or even a formal student of the practice, but it seems to me that the law should be based, at least in part, on common sense and practicality. It should also be reflective of the will of the American people, if it is to have any true weight at all.
As Ulysses S. Grant once said, “The will of the people is the best law.”
Associate Justice of the Supreme Court Antonin Scalia was found dead Saturday on a luxury resort in West Texas, federal officials said.
Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa. MySanAntonio.com said he died of apparent natural causes.
Scalia arrived at the ranch on Friday and attended a private party with about 40 people, the website of the San Antonio Express News said. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body.
The U.S. Marshal Service, the Presidio County sheriff and the FBI were involved in the investigation, according to the report.
Officials with the law enforcement agencies declined to comment.
A woman who answered the phone at the ranch told the Post she was unaware of the justice’s death, and no manager was available to discuss the matter.
A federal official who asked not to be named told the San Antonio Express News paper there was no evidence of foul play and it appeared that Scalia died of natural causes.
Scalia was nominated to the U.S. Supreme Court in 1986 by President Ronald Reagan.
Scalia argues in his opinion that the court is increasingly creating policy rather than serving as a neutral arbiter.
“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court,” he writes.
“This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
Scalia blasts the majority opinion as “couched in a style that is as pretentious as its content is egotistic.”
“The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie,” he writes in a footnote needling the majority for its bombastic language.
It’s the second day in a row that Scalia has blasted the majority’s opinion. On Thursday, he accused the court of creating “SCOTUScare” with a ruling that said the federal government could provide ObamaCare subsidies to consumers on a federal exchange.
Over at Bearing Arms, Bob Owens cites a piece written, likely in Crayola, at The Huffington Post. The author of the drivel, Tom Harvey, proudly announces his right to be offended because I, and others own guns
I Have a Right to Hate Guns
Well, that is true Mr. Harvey, you DO have the right to hate guns, thank you for discovering what should have been obvious to anyone
I’m not sure that I do; it’s not that simple; but I certainly have the right and plenty of reason. I shouldn’t have to hide my position. I should be free to state it clearly, directly and simply and say:
No one is asking you to “hide” your positions. the fact that you must face, sir, is that most Americans disagree with you. See, your right to bless us with your infinite wisdom, is no different than our right to tell you to get stuffed. Liberals like you never seem to grasp that the whole freedom of speech thing cuts both ways.
• It’s much too easy for people of bad will or unstable emotions to become armed and dangerous and we should take the strong action needed to stop it.
Well, Mr. Harvey, it IS easy for people who will steal or buy guns on the black market, no law will stop them. Perhaps you should write your Congressman, and Senator and ask them why the vast majority of people who tried to buy a gun and were denied by the background check are never questioned by authorities. Again, you call for laws, but say nothing of laws NOT enforced. Do you think more laws that will likely be unenforced will do one damn thing to make anyone safer?
• It is the responsibility of gun owners to prove that their activities do not create a danger to the public and submit to whatever regulation is needed to enforce that.
So, what government agency would you place in charge of choosing which American set to exercise their constitutional rights? How would we prove our “activities” do not pose a danger exactly? And what activities would be approved? I question if you actually thought at all before writing such an absurd idea down. I also would question if you can prove that your writing does not pose some threat? Surely you must think, and I use that word think reluctantly, that all of our liberties should be deemed “safe” by Big Brother.
• Unless one has an exceptional need, the risks of having guns far outweigh the benefits, making gun possession unwise for nearly everyone.
Mr. Harvey, have you one shred of credible evidence that supports this asinine claim? The fact is there are tens upon tens of millions of gun owners in America. The vast majority never harm anyone with them. It is also true that tens of thousands of Americans USE our guns in self-defense annually. Millions of Americans have concealed carry licenses, and despite the fantasies of people like you, those gun carriers cause ZERO harm to anyone, except of course, the many times they have stopped bad guys, and hurt the feelings of overly emotional people like you.
• Notwithstanding Antonin Scalia’s bogus logic, the Second Amendment only establishes a collective right.
Ah, here we are, back to the root of your problem sir. You are a Collectivist. Those individual rights are troublesome to you, as they always are to those who frown upon the very idea that there is an inherent human right to keep and bear arms. Where you get the notion that the second amendment applies only to a collective right I cannot say, but I will allow George Mason, known as the Father of said amendment answer. I also include some quotes from other Founders
“…to disarm the people – that was the best and most effectual way to enslave them.” George Mason
“The supposed quietude of a good mans allures the ruffian; while on the other hand, arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside…Horrid mischief would ensue were one half the world deprived of the use of them…” (Thomas Paine, I Writings of Thomas Paine at 56 )
“Firearms stand next in importance to the Constitution itself. They are the American people’s liberty teeth and keystone under independence … From the hour the Pilgrims landed, to the present day, events, occurrences, and tendencies prove that to insure peace, security and happiness, the rifle and pistol are equally indispensable . . . the very atmosphere of firearms everywhere restrains evil interference – they deserve a place of honor with all that is good” (George Washington)
“That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of The United States who are peaceable citizens from keeping their own arms…” (Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, at 86-87 (Peirce & Hale, eds., Boston, 1850))
“To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike especially when young, how to use them.” (Richard Henry Lee, 1788, Initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights
“The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” [William Rawle, A View of the Constitution 125-6 (2nd ed. 1829)
“Americans have the right and advantage of being armed – unlike the citizens of other countries whose governments are afraid to trust the people with arms.” (James Madison, The Federalist Papers #46 at 243-244)
“No Free man shall ever be debarred the use of arms.” (Thomas Jefferson, Proposal Virginia Constitution, 1 T. Jefferson Papers, 334,[C.J.Boyd, Ed., 1950])
“The whole of the Bill (of Rights) is a declaration of the right of the people at large or considered as individuals…. It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of.” (Albert Gallatin of the New York Historical Society, October 7, 1789)
I left the last one last so that it be made VERY clear that the Constitution protects INDIVIDUAL rights Mr. Harvey, not Collective rights. That document protects the individual from tyrants, and the tyranny of the majority, and from people like you who hold their feelings in higher esteem than they do God-given liberties!
UNITED STATES, PETITIONER v. EDITH SCHLAIN WINDSOR, in her capacity as executor of the ESTATE OF THEA CLARA SPYER, et al.
on writ of certiorari to the united states court of appeals for the second circuit
[June 26, 2013]
Justice Scalia, with whom Justice Thomas joins, and with whom The Chief Justice joins as to Part I, dissenting.
This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.
The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?
The answer lies at the heart of the jurisdictional portion of today’s opinion, where a single sentence lays bare the majority’s vision of our role. The Court says that we have the power to decide this case because if we did not, then our “primary role in determining the constitutionality of a law” (at least one that “has inflicted real injury on a plaintiff”) would “become only secondary to the President’s.” Ante, at 12. But wait, the reader wonders—Windsor won below, and so cured her injury, and the President was glad to see it. True, says the majority, but judicial review must march on regardless, lest we “undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.” Ibid. (internal quotation marks and brackets omitted).
That is jaw-dropping. It 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.
This image of the Court would have been unrecognizable to those who wrote and ratified our national charter. They knew well the dangers of “primary” power, and so created branches of government that would be “perfectly coordinate by the terms of their common commission,” none of which branches could “pretend to an exclusive or superior right of settling the boundaries between their respective powers.” The Federalist, No. 49, p. 314 (C. Rossiter ed. 1961) (J. Madison). The people did this to protect themselves. They did it to guard their right to self-rule against the black-robed supremacy that today’s majority finds so attractive. So it was that Madison could confidently state, with no fear of contradiction, that there was nothing of “greater intrinsic value” or “stamped with the authority of more enlightened patrons of liberty” than a government of separate and coordinate powers. Id., No. 47, at 301.
For this reason we are quite forbidden to say what the law is whenever (as today’s opinion asserts) “ ‘an Act of Congress is alleged to conflict with the Constitution.’ ” Ante, at 12. We can do so only when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party. The “judicial Power” is not, as the majority believes, the power “ ‘to say what the law is,’ ” ibid., giving the Supreme Court the “primary role in determining the constitutionality of laws.” The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit. See, e.g., Basic Law for the Federal Republic of Germany, Art. 93. The judicial power as Americans have understood it (and their English ancestors before them) is the power to adjudicate, with conclusive effect, disputed government claims (civil or criminal) against private persons, and disputed claims by private persons against the government or other private persons. Sometimes (though not always) the parties before the court disagree not with regard to the facts of their case (or not only with regard to the facts) but with regard to the applicable law—in which event (and only in which event) it becomes the “ ‘province and duty of the judicial department to say what the law is.’ ” Ante, at 12.
In other words, declaring the compatibility of state or federal laws with the Constitution is not only not the “primary role” of this Court, it is not a separate, free-standing role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us. Then, and only then, does it become “ ‘the province and duty of the judicial department to say what the law is.’ ” That is why, in 1793, we politely declined the Washington Administration’s request to “say what the law is” on a particular treaty matter that was not the subject of a concrete legal controversy. 3 Correspondence and Public Papers of John Jay 486–489 (H. Johnston ed. 1893). And that is why, as our opinions have said, some questions of law will never be presented to this Court, because there will never be anyone with standing to bring a lawsuit. See Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 227 (1974) ; United States v. Richardson, 418 U. S. 166, 179 (1974) . As Justice Brandeis put it, we cannot “pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding”; absent a “ ‘real, earnest and vital controversy between individuals,’ ” we have neither any work to do nor any power to do it. Ashwander v. TVA, 297 U. S. 288, 346 (1936) (concurring opinion) (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339, 345 (1892) ). Our authority begins and ends with the need to adjudge the rights of an injured party who stands before us seeking redress. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) .
That is completely absent here. Windsor’s injury was cured by the judgment in her favor. And while, in ordinary circumstances, the United States is injured by a directive to pay a tax refund, this suit is far from ordinary. Whatever injury the United States has suffered will surely not be redressed by the action that it, as a litigant, asks us to take. The final sentence of the Solicitor General’s brief on the merits reads: “For the foregoing reasons, the judgment of the court of appeals should be affirmed.” Brief for United States (merits) 54 (emphasis added). That will not cure the Government’s injury, but carve it into stone. One could spend many fruitless afternoons ransacking our library for any other petitioner’s brief seeking an affirmance of the judgment against it. 1 What the petitioner United States asks us to do in the case before us is exactly what the respondent Windsor asks us to do: not to provide relief from the judgment below but to say that that judgment was correct. And the same was true in the Court of Appeals: Neither party sought to undo the judgment for Windsor, and so that court should have dismissed the appeal (just as we should dismiss) for lack of jurisdiction. Since both parties agreed with the judgment of the District Court for the Southern District of New York, the suit should have ended there. The further proceedings have been a contrivance, having no object in mind except to elevate a District Court judgment that has no precedential effect in other courts, to one that has precedential effect throughout the Second Circuit, and then (in this Court) precedential effect throughout the United States.
We have never before agreed to speak—to “say what the law is”—where there is no controversy before us. In the more than two centuries that this Court has existed as an institution, we have never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question’s answer. The United States reluctantly conceded that at oral argument. See Tr. of Oral Arg. 19–20.
The closest we have ever come to what the Court blesses today was our opinion in INS v. Chadha, 462 U. S. 919 (1983) . But in that case, two parties to the litigation disagreed with the position of the United States and with the court below: the House and Senate, which had intervened in the case. Because Chadha concerned the validity of a mode of congressional action—the one-house legislative veto—the House and Senate were threatened with destruction of what they claimed to be one of their institutional powers. The Executive choosing not to defend that power, 2 we permitted the House and Senate to intervene. Nothing like that is present here.
To be sure, the Court in Chadha said that statutory aggrieved-party status was “not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional.” Id., at 930–931. But in a footnote to that statement, the Court acknowledged Article III’s separate requirement of a “justiciable case or controversy,” and stated that this requirement was satisfied “because of the presence of the two Houses of Congress as adverse parties.” Id., at 931, n. 6. Later in its opinion, the Chadha Court remarked that the United States’ announced intention to enforce the statute also sufficed to permit judicial review, even absent congressional participation. Id., at 939. That remark is true, as a description of the judicial review conducted in the Court of Appeals, where the Houses of Congress had not intervened. (The case originated in the Court of Appeals, since it sought review of agency action under 8 U. S. C. §1105a(a) (1976 ed.).) There, absent a judgment setting aside the INS order, Chadha faced deportation. This passage of our opinion seems to be addressing that initial standing in the Court of Appeals, as indicated by its quotation from the lower court’s opinion, 462 U. S., at 939–940. But if it was addressing standing to pursue the appeal, the remark was both the purest dictum (as congressional intervention at that point made the required adverseness “beyond doubt,” id., at 939), and quite incorrect. When a private party has a judicial decree safely in hand to prevent his injury, additional judicial action requires that a party injured by the decree seek to undo it. In Chadha, the intervening House and Senate fulfilled that requirement. Here no one does.
The majority’s discussion of the requirements of Article III bears no resemblance to our jurisprudence. It accuses the amicus (appointed to argue against our jurisdiction) of “elid[ing] the distinction between . . . the jurisdictional requirements of Article III and the prudential limits on its exercise.” Ante, at 6. It then proceeds to call the requirement of adverseness a “prudential” aspect of standing. Of standing. That is incomprehensible. A plaintiff (or appellant) can have all the standing in the world—satisfying all three standing requirements of Lujan that the majority so carefully quotes, ante, at 7—and yet no Article III controversy may be before the court. Article III requires not just a plaintiff (or appellant) who has standing to complain but an opposing party who denies the validity of the complaint. It is not the amicus that has done the eliding of distinctions, but the majority, calling the quite separate Article III requirement of adverseness between the parties an element (which it then pronounces a “prudential” element) of standing. The question here is not whether, as the majority puts it, “the United States retains a stake sufficient to support Article III jurisdiction,” ibid. the question is whether there is any controversy (which requires contradiction) between the United States and Ms. Windsor. There is not.
I find it wryly amusing that the majority seeks to dismiss the requirement of party-adverseness as nothing more than a “prudential” aspect of the sole Article III requirement of standing. (Relegating a jurisdictional requirement to “prudential” status is a wondrous device, enabling courts to ignore the requirement whenever they believe it “prudent”—which is to say, a good idea.) Half a century ago, a Court similarly bent upon announcing its view regarding the constitutionality of a federal statute achieved that goal by effecting a remarkably similar but completely opposite distortion of the principles limiting our jurisdiction. The Court’s notorious opinion in Flast v. Cohen, 392 U. S. 83–101 (1968), held that standing was merely an element (which it pronounced to be a “prudential” element) of the sole Article III requirement of adverseness. We have been living with the chaos created by that power-grabbing decision ever since, see Hein v. Freedom From Religion Foundation, Inc., 551 U. S. 587 (2007) , as we will have to live with the chaos created by this one.
The authorities the majority cites fall miles short of supporting the counterintuitive notion that an Article III “controversy” can exist without disagreement between the parties. In Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326 (1980) , the District Court had entered judgment in the individual plaintiff’s favor based on the defendant bank’s offer to pay the full amount claimed. The plaintiff, however, sought to appeal the District Court’s denial of class certification under Federal Rule of Civil Procedure 23. There was a continuing dispute between the parties concerning the issue raised on appeal. The same is true of the other case cited by the majority, Camreta v. Greene, 563 U. S. ___ (2011). There the District Court found that the defendant state officers had violated the Fourth Amendment, but rendered judgment in their favor because they were entitled to official immunity, application of the Fourth Amendment to their conduct not having been clear at the time of violation. The officers sought to appeal the holding of Fourth Amendment violation, which would circumscribe their future conduct; the plaintiff continued to insist that a Fourth Amendment violation had occurred. The “prudential” discretion to which both those cases refer was the discretion to deny an appeal even when a live controversy exists—not the discretion to grant one when it does not. The majority can cite no case in which this Court entertained an appeal in which both parties urged us to affirm the judgment below. And that is because the existence of a controversy is not a “prudential” requirement that we have invented, but an essential element of an Article III case or controversy. The majority’s notion that a case between friendly parties can be entertained so long as “adversarial presentation of the issues is assured by the participation of amici curiae prepared to defend with vigor” the other side of the issue, ante, at 10, effects a breathtaking revolution in our Article III jurisprudence.
It may be argued that if what we say is true some Presidential determinations that statutes are unconstitutional will not be subject to our review. That is as it should be, when both the President and the plaintiff agree that the statute is unconstitutional. Where the Executive is enforcing an unconstitutional law, suit will of course lie; but if, in that suit, the Executive admits the unconstitutionality of the law, the litigation should end in an order or a consent decree enjoining enforcement. This suit saw the light of day only because the President enforced the Act (and thus gave Windsor standing to sue) even though he believed it unconstitutional. He could have equally chosen (more appropriately, some would say) neither to enforce nor to defend the statute he believed to be unconstitutional, see Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. Off. Legal Counsel 199 (Nov. 2, 1994)—in which event Windsor would not have been injured, the District Court could not have refereed this friendly scrimmage, and the Executive’s determination of unconstitutionality would have escaped this Court’s desire to blurt out its view of the law. The matter would have been left, as so many matters ought to be left, to a tug of war between the President and the Congress, which has innumerable means (up to and including impeachment) of compelling the President to enforce the laws it has written. Or the President could have evaded presentation of the constitutional issue to this Court simply by declining to appeal the District Court and Court of Appeals dispositions he agreed with. Be sure of this much: If a President wants to insulate his judgment of unconstitutionality from our review, he can. What the views urged in this dissent produce is not insulation from judicial review but insulation from Executive contrivance.
The majority brandishes the famous sentence from Marbury v. Madison, 1 Cranch 137, 177 (1803) that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Ante, at 12 (internal quotation marks omitted). But that sentence neither says nor implies that it is always the province and duty of the Court to say what the law is—much less that its responsibility in that regard is a “primary” one. The very next sentence of Chief Justice Marshall’s opinion makes the crucial qualification that today’s majority ignores: “Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” 1 Cranch, at 177 (emphasis added). Only when a “particular case” is before us—that is, a controversy that it is our business to resolve under Article III—do we have the province and duty to pronounce the law. For the views of our early Court more precisely addressing the question before us here, the ma- jority ought instead to have consulted the opinion of Chief Justice Taney in Lord v. Veazie, 8 How. 251 (1850):
“The objection in the case before us is . . . that the plaintiff and defendant have the same interest, and that interest adverse and in conflict with the interest of third persons, whose rights would be seriously affected if the question of law was decided in the manner that both of the parties to this suit desire it to be.
“A judgment entered under such circumstances, and for such purposes, is a mere form. The whole proceeding was in contempt of the court, and highly reprehensible . . . . A judgment in form, thus procured, in the eye of the law is no judgment of the court. It is a nullity, and no writ of error will lie upon it. This writ is, therefore, dismissed.” Id., at 255–256.
There is, in the words of Marbury, no “necessity [to] expound and interpret” the law in this case; just a desire to place this Court at the center of the Nation’s life. 1 Cranch, at 177.
A few words in response to the theory of jurisdiction set forth in Justice Alito’s dissent: Though less far reaching in its consequences than the majority’s conversion of constitutionally required adverseness into a discretionary element of standing, the theory of that dissent similarly elevates the Court to the “primary” determiner of constitutional questions involving the separation of powers, and, to boot, increases the power of the most dangerous branch: the “legislative department,” which by its nature “draw[s] all power into its impetuous vortex.” The Federalist, No. 48, at 309 (J. Madison). Heretofore in our national history, the President’s failure to “take Care that the Laws be faithfully executed,” U. S. Const., Art. II, §3, could only be brought before a judicial tribunal by someone whose concrete interests were harmed by that alleged failure. Justice Alito would create a system in which Congress can hale the Executive before the courts not only to vindicate its own institutional powers to act, but to correct a perceived inadequacy in the execution of its laws. 3 This would lay to rest Tocqueville’s praise of our judicial system as one which “intimately bind[s] the case made for the law with the case made for one man,” one in which legislation is “no longer exposed to the daily aggression of the parties,” and in which “[t]he political question that [the judge] must resolve is linked to the interest” of private litigants. A. de Tocqueville, Democracy in America 97 (H. Mansfield D. Winthrop eds. 2000). That would be replaced by a system in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President refuses to implement a statute he believes to be unconstitutional, and whenever he implements a law in a manner that is not to Congress’s liking.
Justice Alito’s notion of standing will likewise enormously shrink the area to which “judicial censure, exercised by the courts on legislation, cannot extend,” ibid. For example, a bare majority of both Houses could bring into court the assertion that the Executive’s implementation of welfare programs is too generous—a failure that no other litigant would have standing to complain about. Moreover, as we indicated in Raines v. Byrd, 521 U. S. 811, 828 (1997) , if Congress can sue the Executive for the erroneous application of the law that “injures” its power to legislate, surely the Executive can sue Congress for its erroneous adoption of an unconstitutional law that “injures” the Executive’s power to administer—or perhaps for its protracted failure to act on one of his nominations. The opportunities for dragging the courts into disputes hitherto left for political resolution are endless.
Justice Alito’s dissent is correct that Raines did not formally decide this issue, but its reasoning does. The opinion spends three pages discussing famous, decades-long disputes between the President and Congress—regarding congressional power to forbid the Presidential removal of executive officers, regarding the legislative veto, regarding congressional appointment of executive officers, and regarding the pocket veto—that would surely have been promptly resolved by a Congress-vs.-the-President lawsuit if the impairment of a branch’s powers alone conferred standing to commence litigation. But it does not, and never has; the “enormous power that the judiciary would acquire” from the ability to adjudicate such suits “would have made a mockery of [Hamilton’s] quotation of Montesquieu to the effect that ‘of the three powers above mentioned . . . the JUDICIARY is next to nothing.’ ” Barnes v. Kline, 759 F. 2d 21, 58 (CADC 1985) (Bork, J., dissenting) (quoting The Federalist No. 78 (A. Hamilton)).
To be sure, if Congress cannot invoke our authority in the way that Justice Alito proposes, then its only recourse is to confront the President directly. Unimaginable evil this is not. Our system is designed for confrontation. That is what “[a]mbition . . . counteract[ing] ambition,” The Federalist, No. 51, at 322 (J. Madison), is all about. If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing to confirm Presidential appointees to the elimination of funding. (Nothing says “enforce the Act” quite like “. . . or you will have money for little else.”) But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so. Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faithfully implement the Court’s decree, just as he did not faithfully implement Congress’s statute, what then? Only Congress can bring him to heel by . . . what do you think? Yes: a direct confrontation with the President.
For the reasons above, I think that this Court has, and the Court of Appeals had, no power to decide this suit. We should vacate the decision below and remand to the Court of Appeals for the Second Circuit, with instructions to dismiss the appeal. Given that the majority has volunteered its view of the merits, however, I proceed to discuss that as well.
There are many remarkable things about the majority’s merits holding. The first is how rootless and shifting its justifications are. For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations—initially fooling many readers, I am sure, into thinking that this is a federalism opinion. But we are eventually told that “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution,” and that “[t]he State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism” because “the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.” Ante, at 18. But no one questions the power of the States to define marriage (with the concomitant conferral of dignity and status), so what is the point of devoting seven pages to describing how long and well established that power is? Even after the opinion has formally disclaimed reliance upon principles of federalism, mentions of “the usual tradition of recognizing and accepting state definitions of marriage” continue. See, e.g., ante, at 20. What to make of this? The opinion never explains. My guess is that the majority, while reluctant to suggest that defining the meaning of “marriage” in federal statutes is unsupported by any of the Federal Government’s enumerated powers, 4 nonetheless needs some rhetorical basis to support its pretense that today’s prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term). But I am only guessing.
Equally perplexing are the opinion’s references to “the Constitution’s guarantee of equality.” Ibid. Near the end of the opinion, we are told that although the “equal protection guarantee of the Fourteenth Amendment makes [the] Fifth Amendment [due process] right all the more specific and all the better understood and preserved”—what can that mean?—“the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does.” Ante, at 25. The only possible interpretation of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today’s holding. But the portion of the majority opinion that explains why DOMA is unconstitutional (Part IV) begins by citing Bolling v. Sharpe, 347 U. S. 497 (1954) , Department of Agriculture v. Moreno, 413 U. S. 528 (1973) , and Romer v. Evans, 517 U. S. 620 (1996) —all of which are equal-protection cases. 5 And those three cases are the only authorities that the Court cites in Part IV about the Constitution’s meaning, except for its citation of Lawrence v. Texas, 539 U. S. 558 (2003) (not an equal-protection case) to support its passing assertion that the Constitution protects the “moral and sexual choices” of same-sex couples, ante, at 23.
Moreover, if this is meant to be an equal-protection opinion, it is a confusing one. The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality. That is the issue that divided the parties and the court below, compare Brief for Respondent Bipartisan Legal Advisory Group of U. S. House of Representatives (merits) 24–28 (no), with Brief for Respondent Windsor (merits) 17–31 and Brief for United States (merits) 18–36 (yes); and compare 699 F. 3d 169, 180–185 (CA2 2012) (yes), with id., at 208–211 (Straub, J., dissenting in part and concurring in part) (no). In accord with my previously expressed skepticism about the Court’s “tiers of scrutiny” approach, I would review this classification only for its rationality. See United States v. Virginia, 518 U. S. 515–570 (1996) (Scalia, J., dissenting). As nearly as I can tell, the Court agrees with that; its opinion does not apply strict scrutiny, and its central propositions are taken from rational-basis cases like Moreno. But the Court certainly does not apply anything that resembles that deferential framework. See Heller v. Doe, 509 U. S. 312, 320 (1993) (a classification “ ‘must be upheld . . . if there is any reason- ably conceivable state of facts’ ” that could justify it).
The majority opinion need not get into the strict-vs.-rational-basis scrutiny question, and need not justify its holding under either, because it says that DOMA is unconstitutional as “a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,” ante, at 25; that it violates “basic due process” principles, ante, at 20; and that it inflicts an “injury and indignity” of a kind that denies “an essential part of the liberty protected by the Fifth Amendment,” ante, at 19. The majority never utters the dread words “substantive due process,” perhaps sensing the disrepute into which that doctrine has fallen, but that is what those statements mean. Yet the opinion does not argue that same-sex marriage is “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702–721 (1997), a claim that would of course be quite absurd. So would the further suggestion (also necessary, under our substantive-due-process precedents) that a world in which DOMA exists is one bereft of “ ‘ordered liberty.’ ” Id., at 721 (quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937) ).
Some might conclude that this loaf could have used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due-process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a “ ‘bare . . . desire to harm’ ” couples in same-sex marriages. Ante, at 20. It is this proposition with which I will therefore engage.
As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. See Lawrence v. Texas, 539 U. S. 558, 599 (2003) (Scalia, J., dissenting). I will not swell the U. S. Reports with restatements of that point. It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.
However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court’s conclusion that only those with hateful hearts could have voted “aye” on this Act. And more importantly, they serve to make the contents of the legislators’ hearts quite irrelevant: “It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” United States v. O’Brien, 391 U. S. 367, 383 (1968) . Or at least it was a familiar principle. By holding to the contrary, the majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.
The majority concludes that the only motive for this Act was the “bare . . . desire to harm a politically unpopular group.” Ante, at 20. Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state (familiar objects of the Court’s scorn, see, e.g., Edwards v. Aguillard, 482 U. S. 578 (1987) ), but our respected coordinate branches, the Congress and Presidency of the United States. Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute. The majority does the opposite—affirmatively concealing from the reader the arguments that exist in justification. It makes only a passing mention of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them. See ante, at 21. I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.
To choose just one of these defenders’ arguments, DOMA avoids difficult choice-of-law issues that will now arise absent a uniform federal definition of marriage. See, e.g., Baude, Beyond DOMA: Choice of State Law in Fed- eral Statutes, 64 Stan. L. Rev. 1371 (2012). Imagine a pair of women who marry in Albany and then move to Alabama, which does not “recognize as valid any marriage of parties of the same sex.” Ala. Code §30–1–19(e) (2011). When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules? If so, which State’s? And what about States where the status of an out-of-state same-sex marriage is an unsettled question under local law? See Godfrey v. Spano, 13 N. Y. 3d 358, 920 N. E. 2d 328 (2009). DOMA avoided all of this uncertainty by speci- fying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision.
Further, DOMA preserves the intended effects of prior legislation against then-unforeseen changes in circumstance. When Congress provided (for example) that a special estate-tax exemption would exist for spouses, this exemption reached only opposite-sex spouses—those being the only sort that were recognized in any State at the time of DOMA’s passage. When it became clear that changes in state law might one day alter that balance, DOMA’s definitional section was enacted to ensure that state-level experimentation did not automatically alter the basic operation of federal law, unless and until Congress made the further judgment to do so on its own. That is not animus—just stabilizing prudence. Congress has hardly demonstrated itself unwilling to make such further, revising judgments upon due deliberation. See, e.g., Don’t Ask, Don’t Tell Repeal Act of 2010, 124Stat. 3515.
The Court mentions none of this. Instead, it accuses the Congress that enacted this law and the President who signed it of something much worse than, for example, having acted in excess of enumerated federal powers—or even having drawn distinctions that prove to be irrational. Those legal errors may be made in good faith, errors though they are. But the majority says that the supporters of this Act acted with malice—with the “purpose” (ante, at 25) “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” ibid.; to “impose inequality,” ante, at 22; to “impose . . . a stigma,” ante, at 21; to deny people “equal dignity,” ibid.; to brand gay people as “unworthy,” ante, at 23; and to “humiliat[e]” their children, ibid. (emphasis added).
I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.
* * *
The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.” Ante, at 26, 25. I have heard such “bald, unreasoned disclaimer[s]” before. Lawrence, 539 U. S., at 604. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Id., at 578. Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” ante, at 23—with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.
I do not mean to suggest disagreement with The Chief Justice’s view, ante, p. 2–4 (dissenting opinion), that lower federal courts and state courts can distinguish today’s case when the issue before them is state denial of marital status to same-sex couples—or even that this Court could theoretically do so. Lord, an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways. And deserves to be. State and lower federal courts should take the Court at its word and distinguish away.
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “ ‘bare . . . desire to harm’ ” couples in same-sex marriages. Supra, at 18. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status. Consider how easy (inevitable) it is to make the following substitutions in a passage from today’s opinion ante, at 22:
“DOMA’s This state law’s principal effect is to identify a subset of state-sanctioned marriages constitutionally protected sexual relationships, see Lawrence, and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA this state law contrives to deprive some couples married under the laws of their State enjoying constitutionally protected sexual relationships, but not other couples, of both rights and responsibilities.”
Or try this passage, from ante, at 22–23:
“[DOMA] This state law tells those couples, and all the world, that their otherwise valid marriages relationships are unworthy of federal state recognition. This places same-sex couples in an unstable position of being in a second-tier marriage relationship. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, . . . .”
Or this, from ante, at 23—which does not even require alteration, except as to the invented number:
“And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”
Similarly transposable passages—deliberately transposable, I think—abound. In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that “personhood and dignity” in the first place. Ante, at 26. As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.
By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples, see ante, at 25, 26. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member of this institution.
As to that debate: Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides. Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves. Since DOMA’s passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices—in other words, democracy. Victories in one place for some, see North Carolina Const., Amdt. 1 (providing that “[m]arriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State”) (approved by a popular vote, 61% to 39% on May 8, 2012), 6 are offset by victories in other places for others, see Maryland Question 6 (establishing “that Maryland’s civil marriage laws allow gay and lesbian couples to obtain a civil marriage license”) (approved by a popular vote, 52% to 48%, on November 6, 2012). 7 Even in a single State, the question has come out differently on different occasions. Compare Maine Question 1 (permitting “the State of Maine to issue marriage licenses to same-sex couples”) (approved by a popular vote, 53% to 47%, on November 6, 2012) 8 with Maine Question 1 (rejecting “the new law that lets same-sex couples marry”) (approved by a popular vote, 53% to 47%, on November 3, 2009). 9
In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.
But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.
1 For an even more advanced scavenger hunt, one might search the annals of Anglo-American law for another “Motion to Dismiss” like the one the United States filed in District Court: It argued that the court should agree “with Plaintiff and the United States” and “not dismiss” the complaint. (Emphasis mine.) Then, having gotten exactly what it asked for, the United States promptly appealed.
2 There the Justice Department’s refusal to defend the legislation was in accord with its longstanding (and entirely reasonable) practice of declining to defend legislation that in its view infringes upon Presidential powers. There is no justification for the Justice Department’s abandoning the law in the present case. The majority opinion makes a point of scolding the President for his “failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions,” ante, at 12. But the rebuke is tongue-in-cheek, for the majority gladly gives the President what he wants. Contrary to all precedent, it decides this case (and even decides it the way the President wishes) despite his abandonment of the defense and the consequent absence of a case or controversy.
3 Justice Alito attempts to limit his argument by claiming that Congress is injured (and can therefore appeal) when its statute is held unconstitutional without Presidential defense, but is not injured when its statute is held unconstitutional despite Presidential defense. I do not understand that line. The injury to Congress is the same whether the President has defended the statute or not. And if the injury is threatened, why should Congress not be able to participate in the suit from the beginning, just as the President can? And if having a statute declared unconstitutional (and therefore inoperative) by a court is an injury, why is it not an injury when a statute is declared unconstitutional by the President and rendered inoperative by his consequent failure to enforce it? Or when the President simply declines to enforce it without opining on its constitutionality? If it is the inoperativeness that constitutes the injury—the “impairment of [the legislative] function,” as Justice Alito puts it, post, at 4—it should make no difference which of the other two branches inflicts it, and whether the Constitution is the pretext. A principled and predictable system of jurisprudence cannot rest upon a shifting concept of injury, designed to support standing when we would like it. If this Court agreed with Justice Alito’s distinction, its opinion in Raines v. Byrd, 521 U. S. 811 (1997) , which involved an original suit by Members of Congress challenging an assertedly unconstitutional law, would have been written quite differently; and Justice Alito’s distinguishing of that case on grounds quite irrelevant to his theory of standing would have been unnecessary.
4 Such a suggestion would be impossible, given the Federal Government’s long history of making pronouncements regarding marriage—for example, conditioning Utah’s entry into the Union upon its prohibition of polygamy. See Act of July 16, 1894, ch. 138, §3, 28Stat. 108 (“The constitution [of Utah]” must provide “perfect toleration of religious sentiment,” “Provided, That polygamous or plural marriages are forever prohibited”).
5 Since the Equal Protection Clause technically applies only against the States, see U. S. Const., Amdt. 14, Bolling and Moreno, dealing with federal action, relied upon “the equal protection component of the Due Process Clause of the Fifth Amendment,” Moreno, 413 U. S., at 533.
6 North Carolina State Board of Elections, Official Results: Primary Election of May 8, 2012, Constitutional Amendment.
7 Maryland State Board of Elections, Official 2012 Presidential General Election Results for All State Questions, Question 06.
8 Maine Bureau of Elections, Nov. 3, 2009, Referendum Tabulation (Question 1).
9 Maine Bureau of Elections, Nov. 6, 2012, Referendum Election Tabulations (Question 1).
SUPREME COURT OF THE UNITED STATES
I am uploading my podcast about Roberts and his indefensible vote today. Some have suggested he was interested in judicial restraint, or that he is concerned that the SCOTUS not look extreme, or partisan to America. Me? I think he had a job to do, and he failed. Some might say he is still a ” strict constructionist” sorry, I do not see how anyone believes that. What he did was to change, or re-write the Obamacare bill, changing the mandate, which even he said was not covered under the Commerce Clause into a tax, which is within the power of Congress. Is there a clearer case of judicial activism than that?
While Justices Kennedy, Scalia, Alito and Thomas voted with the constitution, Roberts voted against it! Sorry, again there is no other way to put it. These justices have one job to do, to uphold, or strike down laws, or portions of laws, as those laws are written. Roberts went well beyond his duties here. He actually chose to re-write the law, so he could uphold it it would seem. Now, a precedent has been set. Congress may now make us buy anything, as long as they call it a tax, and not a mandate! More here in my podcast, click the pic to listen
Bet that headline made you curious huh? Go on you perv, click the link!
A Long Island hooker sold more than just sausage at her roadside hot-dog truck — using the truck to peddle her own flesh even though she’d been busted on the same rap eight years ago, cops said yesterday.
Catherine Scalia, 45, was arrested Thursday night when she offered the off-menu special to an undercover cop and took him back to her East Rockaway pad for some home cooking.
The mother of four pleaded not guilty to a prostitution charge and was held on $2,000 bail.
It’s the second time Scalia’s been busted for mixing sex and Sabretts. She and a pal were nailed in December 2004 for running a similar operation out of the hot-dog truck.
Cops recently discovered she was back in business after disgusted residents near her Baldwin stand complained she was handing out suggestive business cards alongside steaming kielbasa.
Apparently her special was the $50 “manual stimulation dog”!
Across this nation our 2nd amendment rights have been taken. Our rights to bear arms which were written in the bill of rights to PROTECT WE THE PEOPLE from tyranny of government, have been neutered. We can’t (In some states) possess AUTOMATIC firearms. We can’t have magazines over 10 rounds, we must “Register” our firearms with the government, we must wait ten days for the okay from Government before we can get a firearm. We can not carry the firearm loaded on our person without big brothers acceptance.. The list goes on.
Some of the laws that have been passed in certain states make sense to some. To me, I’d just as soon see EVERYONE carrying a gun. The playing field would be more level than it is now. The questions seems to be “Why do you need a gun?” or “Why do you need a magazine that holds that many bullets?” or Why do you need to carry a gun?” these questions are ridiculous on their face but they are the very questions being asked by the grabbers.
If you wanted to offer a description of STOOPIT! this would suffice I think.
The newest member of the Supreme Court is in the minority in backing a stay of execution over questions about the safety of a drug to be used in a lethal injection. Shortly after the stay was overturned Tuesday, Arizona executed Jeffrey Landrigan.
Yep, you read that correctly! I think I have fond the Marxist Moron for today!