DOMA Under Fire At The Supreme Court

The Defense Of Marriage Act didn't fare very well during today's Supreme Court oral arguments.

constitution-preamble-gavel

Today, the Supreme Court heard oral argument in United States v.Windsor, one of the many cases that has made its way through the Federal Court system over the past several years attacking the Constitutionality of Section Three of the Defense Of Marriage Act, which purports to define marriage for federal law purposes as only a marriage between a man and a woman. The Windsor case concerns the relationship of Edith Windsor and Thea Spyer who were married in Canada in 2007 after 4o years together. Spyer died in 2009 and, because DOMA’s Section Three means that the Federal Government did not recognize their marriage (even though New York State did by the time of Spyer’s death) and Windsor was required to pay over $300,000 in estate taxes from what she had inherited as Spyer’s surviving spouse. Windsor filed suit challenging DOMA and won at both the District Court and the Court of Appeals levels. Today, in oral argument, there appeared to be at least some sign that DOMA is in serious trouble in the Supreme Court:

>WASHINGTON — A majority of the justices on Wednesday asked skeptical questions about the constitutionality of the Defense of Marriage Act of 1996, as the Supreme Court took up the volatile issue of same-sex marriage for a second day.

Justice Anthony M. Kennedy, who most likely holds the decisive vote, returned again and again to the theme that deciding who is married is a matter for the states. The federal government, he said, should respect “the historic commitment of marriage and the rights of children to the states.”

That suggests that he is prepared to vote with the court’s four liberal members to strike down the part of the 1996 law that defines marriage as the union of a man and a woman for the purposes of more than 1,000 federal laws and programs. Such a ruling would deliver federal benefits to married same-sex couples in the nine states, and the District of Columbia, that allow such unions.

If the 1996 law stands, Justice Kennedy said, “you are at real risk with running in conflict with what has always been the essence” of state power, which he said was to regulate marriage, divorce and custody.

Justice Ruth Bader Ginsburg said the federal law effectively created a two-tiered system of marriage. “There are two kinds of marriage,” she said. “Full marriage and the skim-milk marriage.”

Justice Sonia Sotomayor said the law violated equal protection principles. “You’re treating married couples differently,” she said,

Paul D. Clement, a former solicitor general who is defending the law on behalf of House Republicans because the Obama administration has concluded it is unconstitutional, argued that the federal government was entitled to use a uniform definition of marriage across the nation in connection with more than 1,000 federal laws and programs regulating everything from taxes to Social Security benefits.

Mr. Clement said that those laws and programs had originally been passed with the traditional definition of marriage in mind and that when Congress approved the Defense of Marriage Act, it was worried that if one state extended the definition to include same-sex couples, it would effectively force other states and the federal government to recognize them, too. Lawmakers were concerned, he said, that “this is a redefinition of an age-old institution.”

Justice Elena Kagan said there was something else at work

“Do we really think Congress was doing this for uniformity reasons or do we think the Congress’s judgment was infected by dislike, by animus, by fear?” she asked. She read a quote from the House record at the time the law was passed suggesting that lawmakers wanted to show “moral disapproval of homosexuality.”

Mr. Clement responded: “Of course the House report says that. I think if that’s enough to invalidate the statute you should invalidate the statute. But that’s never been enough.” He said that “just because a couple legislators may have had an improper motive” did not mean there was not a legitimate purpose to the law.

The arguments came a day after another gay-marriage case was debated before the court, a challenge to California’s Proposition 8, which bans such unions. That argument was murky and muddled, and many of the questions from the justices suggested that they were looking for a way to duck the central issue.

By comparison, Wednesday’s case was modest and the arguments clear. The court heard a preliminary 50-minute session on threshold issues, but they did not seem to threaten to send the case off the rails.

The court appointed Vicki C. Jackson, a law professor at Harvard, to argue a position not fully supported by any party: that the case’s odd procedural posture means the court lacks jurisdiction to decide it. The problem, she said, is that both sides want the same result. “There is not adversity,” she said. “They are in agreement.”

To be sure, there were some sharp questions.

“This is wholly unprecedented,” Justice Antonin Scalia said of the odd way the case had reached the court. “You’re asking us to do something we’ve never done before to reach this case.”

“It’s unusual,” acknowledged Srikanth Srinivasan, a deputy solicitor general.

“No, it’s not unusual,” Justice Scalia said. “It’s totally unprecedented.”

After an appeals court struck down the challenged part of the law, the outcome the administration had urged, the Justice Department nonetheless appealed, saying the issue warranted an authoritative decision from the Supreme Court.

Chief Justice John G. Roberts Jr. and some of the other more conservative justices expressed irritation that the case was before them at all and said President Obama’s stance – to enforce the law but not defend it – contradicted itself.

“I don’t see why he doesn’t have the courage of his convictions” and not enforce the law if he thinks it is unconstitutional, the chief justice said.

There were also questions about whether House Republicans had standing to defend the law. “Nobody is suggesting,” Mr. Clement said, “that this is a best-practices situation.” But there did not seem to be a consensus on the bench to avoid deciding the constitutionality of the law.

Dismissing the case on standing grounds would probably have the effect of letting stand the appeals court ruling that threw out the law. But while the conservative justices expressed skepticism that the court should be deciding the matter, Justice Kennedy suggested there was an issue legitimately before them because “it seems to me there’s injury here.”

To answer the Chief Justice’s point, the reason that the President is enforcing DOMA while at the same time declining to support it on appeal is really quite simple. If the Administration refused to enforce DOMA by, say, ordering the Internal Revenue Service to recognize Ms. Windsor’s marriage and not force her to pay the estate taxes resulting from the death of her spouse, then it would be blatantly ignoring a law that was duly passed by Congress and signed into law by President Clinton. This would be a direct abrogation of the President’s obligations under the Constitution to “take care that the laws be faithfully executed.” Presidents do not have the option to simply ignore the law when they disagree with it and doing so would, potentially, be an impeachable offense. By contrast, as I’ve noted before, the decision by the Administration not to defend DOMA on appeal is both not unprecedented and completely within the Executive Branch’s discretion. It seems doubtful that the Court will knock this case own on standing, so in some sense these comments by Roberts don’t matter, but the fact remains that he sets up a completely false dichotomy there, and I’m pretty sure he’s smart enough to know it.

As for the argument itself, Lyle Denniston’s recap makes it clear that the Defense of Marriage Act appears to be on very shaky ground:

After a sometimes bewilderingly complex first hour, discussing the Court’s power to decide the case of United States v. Windsor (12-307), the Court moved on to explore DOMA’s constitutionality.  And one of the most talented lawyers appearing these days before the Court — Washington attorney Paul D. Clement — faced fervent opposition to his defense of DOMA from enough members of the Court to make the difference.  He was there on behalf of the Republican leaders of the House (as majority members of the House’s Bipartisan Legal Advisory Group), defending the law because the Obama administration has stopped doing so.

Justice Kennedy told Clement that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage.   Kennedy also seemed troubled about the sweeping breadth of DOMA’s Section 3, noting that its ban on benefits to already married same-sex couples under 1,100 laws and programs would mean that the federal government was “intertwined with citizens’ daily lives.”   He questioned Congress’s very authority to pass such a broad law.

Moreover, Kennedy questioned Clement’s most basic argument — that Congress was only reaching for uniformity, so that federal agencies would not have to sort out who was or was not married legally in deciding who could qualify for federal marital benefits, because some states were on the verge of recognizing same-sex marriage.

Along with sharply negative comments about DOMA by the Court’s four more liberal members, Kennedy’s stance could put the law on the edge of constitutional extinction.  But, if the Court were to do that based on states’ rights premises, the final ruling might not say much at all about whether same-sex couples were any closer to gaining an equal right to marry under the Constitution.

There did not appear to be a majority of Justices willing to strike down the 1996 law based on the argument that the Obama administration and gay rights advocates have been pressing: that is, the law violates the Fifth Amendment guarantee of legal equality in general.

(…)

In order to rule on DOMA’s validity, the Court has to be persuaded that it has a genuine controversy before it — that is a real legal dispute between opposing parties, each of whom has a direct interest in the outcome.  Whether it has that was the issue, with Professor Jackson arguing that the administration wants the same thing as Ms. Windsor — the nullification of DOMA Section 3 — so the Court has no jurisdiction over the government’s appeal, and arguing that the House GOP leaders have no direct harm they can claim even if DOMA is nullified.

The Justices seemed somewhat at odds over whether they do have the authority to go ahead with this case, so the possibility remained that the Court in the end could choose not to decide the merits of the law’s validity.  That portion of the argument focused on just who in Congress, if anyone, could be in court to defend a federal law when the executive branch chose not to do so.

Justice Kennedy seemed to be leaning toward finding that there did exist a live controversy — between the government and Mrs. Windsor, over whether she is entitled to a refund of an estate tax she paid on her late spouse’s estate.   But Chief Justice John G. Roberts, Jr., commented that the Court had never ruled on a case in which all of the parties involved agreed — as he suggested would be the case with the government and Ms. Windsor sharing their opposition to DOMA.

It did not appear, however, that Clement had succeeded in contending that the House GOP leaders (BLAG) had a full right to be in court to defend DOMA in the absence of a defense by the government.

Ilya Shapiro has these observations:

The jurisdictional arguments were even more complicated today, but if the Supreme Court reaches the merits, there seem to be five votes to strike down DOMA’s Section 3: the four “liberal” justices on equal protection grounds and Justice Kennedy because the federal government is intruding on state authority to regulate marriage.  Now, my prediction is worth what you paid for it – and one or more of the liberals (or even Chief Justice Roberts) could join Kennedy to make the resulting ruling less stark – but there are good reasons to believe that a 4-1-4 merits decision is possible even if Kennedy is ultimately persuaded by the equal protection claim.  To the extent the swing justice is wary of the political implications of striking down all states’ marriage laws, then he might not want a ruling that would set the logical precedent for such a move.  There was a definite sense at the Court that the provision of DOMA that limits marriage to opposite-sex couples for purposes of federal law isn’t long for the world, but a 4-1-4 decision would have no controlling theory.

As I’ve said before, trying to lead the tea leaves of what’s going on behind the closed doors of the Supreme Court based on oral argument is quite often an ill advised move. Nonetheless, the questioning from both today and yesterday seems to indicate that the Justices, and most importantly Kennedy, are concerned about moving too quickly on a political issue that still continues to divide the public. That’s why I think it’s unlikely that we’ll see the broad, applicable nationwide, ruling on Proposition 8 that gay rights proponents are hoping for. Instead, we’re likely to see a holding that is more limited in it’s applicability, perhaps only to those states that bar same-sex marriage but recognize civil union, perhaps only to California. It’s also possible that the Court will find that there’s a lack of standing on the part of the parties trying to defend the law, meaning that the appeal itself is moot. As I explained yesterday, this would leave Proposition 8 invalidity in California but there would be only minor precedential impacts for other jurisdictions.

It’s possible that the same thing could happen for DOMA. The Court could decide that the House GOP Leaders lack standing to defend the law on appeal, thus meaning that the case is dismissed with no decision on the merits. The impact of such a decision, though,would mean that we’d end up with a patchwork of laws with some Judicial Circuits having ruled that DOMA is unconstitutional and others not having ruled at all (there is no Court of Appeals that has upheld DOMA). This leads to a bizarre problem for the Federal Government where DOMA is invalid in some parts of the country while remaining valid in others. The Justices are fully aware that this would be the impact of a ruling based solely on the standing issue, which I why I suspect that they’d be far less likely to toss the DOMA case on standing grounds than the Proposition 8 case. It’s still possible they’ll do it, of course, but I don’t think these Justices, and specifically Justice Kennedy, would be willing to create legal and judicial chaos just so they can avoid ruling on the merits of the case.

The interesting thing to watch for will be to see how any potential  decision works itself out. Assume, for example, that Shaprio is right that we’re at the point where Kennedy would be reluctant to sign on to the Equal Protection argument likely to be championed by the Court’s liberal wing and instead would write an opinion to strike down DOMA on federalism grounds (a judgment the liberals would sign on to to create a functional majority, although a case that doesn’t have a clear precedent). The interesting thing to watch in that case would be whether one of the Court’s conservative judges would end up joining Kennedy’s Federalism argument and thus turn a 4-1-4 case into a 4-2-3 case. The most likely candidate for this would seem to be Chief Justice Roberts, but we’ve also seen Alito, Scalia, and Thomas champion federalism before and one or more of them might be potentially persuadable if they saw the Kennedy opinion as a vehicle for reviving the 10th Amendment.

As with the Proposition 8 case, we’ll likely get this opinion in late June. Until then, you can listen to the oral argument here, or read the transcript which I’ve embedded below.

United States v. Windsor Transcript by dmataconis

FILED UNDER: Law and the Courts, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. JKB says:

    I’ve seen a discussion that if the Prop 8 case is dismissed on standing that it could end up that the District court didn’t have jurisdiction on lack of adversity. That would be interesting with California constitutional officers refusing to protect, defend and enforce the CA constitution even as Prop 8 stood. Could be a nice election topic. However, given the CA Supreme court advised the supporters of Prop 8 did have standing according to CA law, dismissing on standing would be an odd presumption by the federal government on who can and can’t bring cases for CA.

  2. Nonetheless, the questioning from both today and yesterday seems to indicate that the Justices, and most importantly Kennedy, are concerned about moving too quickly on a political issue that still continues to divide the public.

    And we continue to drag that club foot around…..

    God forbid we move too quickly and give some knuckle-dragger a road burn.

  3. grumpy realist says:

    Did anyone have a similar argument about “moving too quickly” in Loving vs. Virginia?

  4. OzarkHillbilly says:

    Chicken shits….

  5. @JKB:

    When the case was in the District Court it was defended by the State of California, which at that time was led by Governor Schwarzenegger. When it came time to appeal the case, Jerry Brown was Governor and he and the Attorney General had announced that they would not defend the case on appeal.

    So, yea, the defenders of Prop 8 at the District Court stage did have standing. because those defenders were the then Attorney General of California.

  6. @grumpy realist:

    There were no significant standing issues in Loving v. Virginia

  7. Rafer Janders says:

    Nonetheless, the questioning from both today and yesterday seems to indicate that the Justices, and most importantly Kennedy, are concerned about moving too quickly on a political issue that still continues to divide the public.

    They’re never concerned about moving too slowly on a political issue that divides the public, are they? And yet moving too slowly can do as much — or more- harm as moving too quickly.

  8. @Rafer Janders:

    There are, I think, legitimate reasons for Courts to be concerned about being too far ahead of the public on some issues.

  9. Mikey says:

    @Doug Mataconis: A majority of Americans support the full recognition of same-sex marriage. In the younger demographics, support runs as high as 80%. I’m not sure the High Court has to worry about being “too far ahead of the public” on this issue.

    Also, what @James Pearce (Formerly Known as Herb) said:

    God forbid we move too quickly and give some knuckle-dragger a road burn.

  10. @Doug Mataconis:

    “legitimate reasons for Courts to be concerned about being too far ahead of the public on some issues.”

    As a kind of general guiding principle, sure…..

    What are the legitimate reasons in this case?

  11. Tony W says:

    It was bad law from the beginning and Clinton was wrong to pander to Newt’s minions. Even the name of the act was cynical – even back in the slave days we didn’t have the “Defense of Racism Act”.

    What, pray tell, would be the compelling state interest in ‘saving’ marriage – it’s akin to ‘saving’ high-school graduation from the threat of the G.E.D.

    Of course in those days Maggie Gallagher spent her days convincing that gay folks marrying was going to cause All Sorts of Evil. That woman can rot in hell.

  12. JKB says:

    @Doug Mataconis:

    I was just repeating what I read on another law blogger analysis. I just seemed interesting. I’d be more concerned with the SCOTUS throwing out the CA Supreme Court’s opinion that the supporters did have standing.

  13. JKB says:

    @Mikey: In the younger demographics, support runs as high as 80%.

    On the other hand, Prop 8 was duly enacted by popular vote by a majority of voters in California. So by the same logic, Prop 8 should be permitted to stand until repealed by popular vote.

  14. swbarnes2 says:

    @Doug Mataconis:

    There are, I think, legitimate reasons for Courts to be concerned about being too far ahead of the public on some issues.

    Says the person whose civil rights are, always have been, and always will be secure, because no one tries to take them from straight, prosperous white guys.

  15. JKB says:

    @Tony W: , pray tell, would be the compelling state interest in ‘saving’ marriage

    Well, the statutes in question were enacted with a common, long standing definition of marriage as being between a man and a woman. The states started altering that definition so revisiting the idea of using “marriage” in federal statutes is a valid concern.

    That said, the real question now is, why was marriage used and was the intent really to limit the federal benefits to opposite gender “marriages” or do same gender marriages also meet the intent.

    It does appear the Republicans may wreck upon the rocks of their own language as they put into the record that the law was at least in part enacted to register disapproval of same gender marriages. Although I believe they used homosexual marriages thus venturing even deeper into possible discrimination on the basis of sexual orientation.

  16. JKB says:

    I must say I do like these cases. They call into question what marriage really is in relation to what is accepted in today’s society. Not to mention, DOMA would be nothing but an amusement were it not for the slow creep of the federal government into the day to day lives of Americans through income tax, the death tax, Social Security, HIPA, etc.

  17. Ron Beasley says:

    What this has shown me is that SCOTUS is political – they want no part of this hot potato.

  18. Mikey says:

    @JKB: I was just pointing out that any concern with the High Court getting ahead of the public on this was misplaced, because the public already supports full recognition of same-sex marriage.

    Usually, waiting for legislation to catch up to public sentiment on an issue is how things should work. However, with this issue, we have two major reasons why it isn’t: one, there’s the infringement of a right the High Court has, on multiple occasions, called a basic right; two, there is actual harm occurring that will keep occurring as long as the legislative process takes. So the Court must decide.

  19. Justinian says:

    One of the justices on the bench commented on how short is the history of homosexual marriage (newer than cell phones), against how long marriage was not granted to homosexual relationships (two thousand years, though actually four or six thousand years).

    Many have advanced the theory of progress: that in modern times, homosexuality is more tolerated than earlier, and that that is why we are seeing this issue now, rather than earlier in human history. And yet the theory has this difficulty: the cultures of ancient Greece and Rome were very tolerant, even friendly, to homosexuality, and yet never had homosexual marriage.

    Another theory is that the current climate is a product of the Fourteenth Amendment, but that theory will not account for why this never occurred promptly after that amendment’s ratification, nor will it account for why homosexual marriage is now being countenanced by some countries in Europe, who have, of course, no Fourteenth Amendment as we do.

    The following theory explains things from an historical perspective. How many of the facts it does, and does not, account for, I have not yet tallied. A full explanation of what is happening may require a combination of all these theories. Nevertheless, for those who wish to read it, here is the new theory:

    Not all of ancient history and ancient law is applicable to the present day, but the following quotation seems as fresh and clear as if written yesterday:

    The law of nature is that which she has taught all animals; a law not peculiar to the human race, but shared by all living creatures, whether denizens of the air, the dry land, or the sea. Hence comes the union of male and female, which we call marriage; hence the procreation and rearing of children, for this is a law by the knowledge of which we see even the lower animals are distinguished. — Institutes of Justinian, Title II, Section 1.

    Thus, in ancient Roman times, a man and a woman were married by one year of uninterrupted cohabitation, and, later, in English common law, marriage occurred between men and women by the passage of three, five, or seven years, depending on jurisdiction. I call this form of marriage “natural law marriage.” It needs no statutes, ceremonies, or paperwork. It just happens.

    Religious conservatives are the ones most vexed by the very idea of homosexual marriage, but, to me, they have brought this problem upon themselves. Throughout the 1800s, they sought to abolish any legal recognition of natural-law marriage (in Europe) or common-law marriage (in England and the United States). They succeeded in many jurisdications.

    But, as usual, they should have been more careful in what they asked for. By getting rid of recognition of natural-law marriage, they asserted that only statutory-law marriage was valid. But statutory law can be anything a legislature makes it be. With a respect for natural-law marriage, no legislature would create a form of marriage at contradiction to it, hence the forms of marriage we have seen so much of for the past two, four, or even six thousand years of history. Now, with natural law disregarded, we have the “anything goes” forms of marriage, a bit of which we are seeing now.

  20. Tsar Nicholas says:

    DOMA was a dumb idea in 1996. It’s a dumb idea today. The Feds should not be telling de facto and de jure the likes of New York and Maryland, etc. how to define their own domestic relations laws. And federal benefits should not be different for married New York and Maryland couples, based upon their sex. New York and Maryland have determined, legislatively, by people subject to voter retention or ouster, there no longer is such a difference. 10th Amendment, personified. Feds be gone.

  21. Laurence Bachmann says:

    @Doug Mataconis: Further, striking DOMA down on 10th amendment rather than 14th Amendment, Equal Protection grounds buys Cons time to let the incremental, state-by-state process continue. Ideally for justices like Roberts and Kennedy, when the supreme court finds a “right” to marry exists for gays it will be after at least a majority of states have signed on to the idea. Without saying so Loving IS the model.

    if I were to try reading those notoriously unpredictable tea leaves I would say Roberts signs up for a strike down of DOMA on 10th Amendment grounds and Libs go along for the sake of a 6-3 v a 5-4 decision. Prop 8 goes down on grounds of standing.

  22. Argon says:

    Hmm… What we’ve got is a more a Supreme Court of 3-4 milquetoast instead of one where justice and honest stands matter. ‘Too fast’, ‘too hot’, ‘too cold’… Is this a panel of Goldilockses?

  23. Crusty Dem says:

    @Argon:

    Seriously. I’m so tired of hearing the political answers from and about justices on a court. I’m not saying they were ever pure, but since Bush v Gore, I’ve seen precious little evidence of the court being a court and plenty for it as a superlegislature. And screw that, we’ve already got two lousy legislatures, we don’t need a third.

  24. Rafer Janders says:

    @Justinian:

    And yet the theory has this difficulty: the cultures of ancient Greece and Rome were very tolerant, even friendly, to homosexuality, and yet never had homosexual marriage.

    Um, because marriage, historically, was the subjugation of the man by the woman. It was the transfer of property from one man — the father — to another man– the husband.

    Of course, therefore, there was no such thing as homosexual marriage, because marriage was a property transfer where the wife would become subjugated to the husband (after being first subjugated to her partner). Two men, on the other hand, would be equal, and thus “marriage” would not apply.

    However, in the present day, we no longer see marriage that way — we see it as the union of two equals. And therefore homosexual marriage makes as much sense and is as applicable as heterosexual marriage.

  25. Pharoah Narim says:

    Get rid of DOMA and everything else sponsored by the religious right over the past 20 years…..

  26. anjin-san says:

    Greece and Rome were very tolerant, even friendly, to homosexuality, and yet never had homosexual marriage.

    Guess the concept that we have made progress over thousands of year is just too much for conservatives to wrap their calcified brains around.

  27. Xenos says:

    @Rafer Janders: This goes even further than marriage – any sexual relationship involved inequality, and thus the same-sex relationships accepted in classical times always involved a patron-client relationship. For two men or youths to engage in sex between equals, whether in age or status, was considered to be in very bad taste, and a severe humiliation for one of the parties. It was pretty much the same thing as rape.

    The is an echo of this in the Oscar Wilde case. Wilde was perceived to be the ‘butch’ partner and his lover was a very high-status member of the nobility. While same-sex pairings could be tolerated if kept discrete, such a relationship was considered to be outrageous.

    This then directs us to what is really innovative and revolutionary about modern family law: the absolute equality of both partners within the marital status. Gay marriage is just a sensible afterthought once the revolution has entrenched itself.

  28. matt bernius says:

    @Xenos:

    The is an echo of this in the Oscar Wilde case. Wilde was perceived to be the ‘butch’ partner and his lover was a very high-status member of the nobility. While same-sex pairings could be tolerated if kept discrete, such a relationship was considered to be outrageous.

    There’s another key aspect of Wilde’s gross indecency case that’s worth pointing out — Homosexual acts had to first be made illegal before prosecution could happen. Government’s had to take action to create laws against homosexuality.

    Likewise, it wasn’t until the 19th century that Homosexuality became a disease/disorder. Prior to that, even in cultures that didn’t approve of it, it was considered something that happened.

  29. Justinian says:

    @Rafer Janders:

    In reply to Rafer Janders, who wrote:

    Um, because marriage, historically, was the subjugation of the man by the woman. It was the transfer of property from one man — the father — to another man– the husband.

    Of course, therefore, there was no such thing as homosexual marriage, because marriage was a property transfer where the wife would become subjugated to the husband (after being first subjugated to her partner). Two men, on the other hand, would be equal, and thus “marriage” would not apply.

    However, in the present day, we no longer see marriage that way — we see it as the union of two equals. And therefore homosexual marriage makes as much sense and is as applicable as heterosexual marriage.

    I grant that such a view of “historical marriage” is very prevalent. However, ancient forms of marriage are much more varied than most people realize.

    Very ancient marriage was, indeed, a strict subordination of the woman to the man. In such marriages, the woman was in manu (“in the hand”). But another form arose, where the woman was sui iuris (“of her own right”). I know to a certainty that women being sui iuris was a very common form of marriage by AD 200, when Gaius wrote his famous Institutes.

    Unlike us moderns, the ancient Romans were presented with a variety of different forms of marriage to choose from. (“Different strokes for different folks” we might call it now.) But the idea that any form of marriage could exist between persons of the same sex was, if not inconceivable, certainly a “non-starter” with them.

    Gaius also wrote to disparage the idea that women were inherently morally incompetent to handle their own estates and own affairs. Again, this is established, mainstream Roman Law circa AD 200. Women’s liberation was far, far more ancient than most people realize.

    Also, the ancient Romans had a marriage ceremony that was perfectly symmetrical. The woman would turn to the man and say: “Do you agree to become family-father?” The man would say “I do.” Then, the man would turn to the woman and say, “Do you agree to become family-mother?” and the woman would say “I do.”

    Not all Roman marriages were in this form, but it was indeed a common form all through the Imperial period.

    Forms of marriage where the woman was “in her own right” and not under the domination of her husband are indeed ancient. (By the same token, forms of marriage where the woman was under domination are also ancient, even more ancient.) And, back to the specific topic here, none of it was ever between persons of the same sex.

  30. matt bernius says:

    @Justinian:
    Couple points…
    (1) on the issue of the diversity of Roman marriages — first, thanks for providing the additional information.

    However, if one looks more broadly, while there might have been the possibility of a more equal marriage ceremony, that appeared to have gone the way of the Empire. The practice of dowries — not to mention inheritance law — demonstrates how the primary purpose of the wife in a marriage was to serve as an object for child rearing. And that runs across countless cultures.

    (2) As I mentioned in a previous thread, I find appeals to “natural law” as deeply problematic for “nature” is typically deployed metaphorically (to equal divinity) to justify whatever the individual using the phrase thinks is correct. Actual nature very rarely enters into such laws… otherwise how do we account for the fact that most species are not monogamous in the long term, let alone within a single breeding cycle (the average housecat, for example, can in a single litter, bear kittens from multiple fathers)? Or the fact that there is a huge amount of evidence of homosexual behavior and pairs across multiple species?

  31. matt bernius says:

    @Justinian:
    Shorter response — even if we accept the idea that the Romans were truly enlighten on the subject of Women’s Rights — how do we resolve the countless centuries where this was not the mainstream of European thought that occurred between the fall of Rome and today?

    Don’t all of those practices constitute “tradition” as well? And yet we find it correct to override the long held tradition of assuming that women are not capable of the necessary thought to do things like… you know… vote.

    Another theory is that the current climate is a product of the Fourteenth Amendment, but that theory will not account for why this never occurred promptly after that amendment’s ratification, nor will it account for why homosexual marriage is now being countenanced by some countries in Europe, who have, of course, no Fourteenth Amendment as we do.

    Can you please unpack this as I cannot believe that your actual though process is actually as convoluted and, frankly, illogical, as this scans.

  32. Argon says:

    Ah, here’s a writer who says it better than I can…
    Andrew Cohen in The Atlantic:

    Fifty years from now, when same-sex marriage is recognized in every American jurisdiction, our relatively enlightened descendants will cull through the transcripts and audio feeds of this week’s oral arguments at the United States Supreme Court in Perry and Windsor and shake their heads in wonder and dismay. Look at how little time the learned justices spent exploring the intent and effect of the discriminatory laws, our grandchildren will say, and look at how much time they spent instead searching among the weeds for ways to avoid a definitive ruling about the constitutional rights of millions of people.

  33. Justinian says:

    @matt bernius:

    In reply to matt bernius, immediately above:

    In classical jursiprudence, natural law is inherently unwritten and consequently cannot be interpreted similarly to statutory law. Under classical paradigms, monogamy is not part of natural law, because some animals are promiscuous, and polygamy was (and is) practiced by several human societies. The fact that only monogamous unions were sanctioned as legal marriage in Rome was a “statutory add-on” (as we might call it now) to the natural-law concept of marriage quoted in my original post.

    A litter of kittens may have multiple fathers for cats, but not for people. It is true, though, that one can tell the mother of an newborn baby much more reliably than one can determine who is the father (this being back in the days before DNA testing. Even today it is still largely true.) In classical antiquity, this simple observation about human society would be classed as yet another feature of natural law.

    As to there being “a huge amount of evidence of homosexual behavior and pairs across multiple species,” I am skeptical. All too often, researchers will sacrifice scientific integrity when dealing with issues of huge implications, especially if it can be used in a “landmark decision.” That is one of the reasons I take such an interest in history: there you know the authors didn’t have any interest in any specific outcome in the present day (though they may have had their hidden sets of agenda for their own times.)

  34. matt bernius says:

    @Justinian:

    As to there being “a huge amount of evidence of homosexual behavior and pairs across multiple species,” I am skeptical.

    Color me not surprised with this response based on our previous discussions of Climate Change.

    Not offense, but your response form the typical pattern of an uninformed “skeptic” (intentionally scare quoted): i.e. someone who refuses to actually inspect the variety of available evidence out of the concern that it will disrupt their core beliefs. This is of course the antithesis of true skepticism.

    That is one of the reasons I take such an interest in history: there you know the authors didn’t have any interest in any specific outcome in the present day (though they may have had their hidden sets of agenda for their own times.)

    Ahh… the great fallacy — there is no “objective” reading of source documents. The very process of reading requires interpretation and introduces biases. And not where is this more evident than in the necessary connective tissue that connects a source quote to an argument.

    BTW, this is the continual problem many of us who have experience in primary source research find with your style of argumentation. You have a habit of contextualizing your evidence, reading your own biases into your sources, and as above dismissing other evidence as fraught with bias.

  35. Justinian says:

    @matt bernius:

    In reply to matt bernius, who wrote:

    even if we accept the idea that the Romans were truly enlighten on the subject of Women’s Rights — how do we resolve the countless centuries where this was not the mainstream of European thought that occurred between the fall of Rome and today?

    History is not the oversimplified simple, straight-shot story presented in school books and other venues. The status of women in society had ups and downs, backs and forths. For example, the doctrine was a woman’s “moral incapacity” was indeed mainstream jurisprudence in the United States in the nineteenth century and into some of the twentieth. These doctrines come and go over an historical scale of time.

    * * * * *

    On much the same topic: Shortly after the publication of Darwin’s book On the Origin of Species, the new science became very fashionable. As with the Theory of Relativity after it, the Theory of Evolution got oversimplified and garbled by the general population. It was actually believed that Darwin had shown that all matter tends to improvement over time. A modern biologist might gasp at such an interpretation, but such was a very prevalent way the general public understood (or believed they understood) the Theory of Evolution.

    Thus was born the idea we now call progressivism: that all things, material or otherwise, tend to improvement over time. Little things like the sinking of the Titanic and World War One did give some people reason to doubt the general theory.

    But progressivism lives on in the “straight shot” conceptions of history currently prevalent. For myself, it causes no cognitive dissonance whatsoever to see “women’s moral incapacity” presented in a derogatory manner in a book written in AD 200, and then see the same concept treated as perfectly plain and proper in a book written in 1880, and then go back to being derogated again in the time in which I am living now.

    * * * * *

    I am asked to unpack my argument about the Fourteenth Amendment. The Fourteenth Amendment cannot be an all-explaining reason for the acceptance of homosexual marriage for this reason: if the Fourteenth Amendment alone implied the acceptance of homosexual marriage, this implication would have been made in days, months or, at the most, years after its adoption as part of the Constitution. Instead, the Fourteenth Amendment is over a century old. Surely there is something more, or something else, at play.

  36. Justinian says:

    @matt bernius:

    In an earlier post I had said that I was “skeptical” of reports of “a huge amount of evidence of homosexual behavior and pairs across multiple species.” Matt bernius replied that my skepticism was selective and unjustified. Since I am ever one to substantiate things as well as I can, here is why I have so much skepticism on newly found science on highly charged political issues.

    I remember distinctly it was in the spring of 1995. An article came out about how homosexuality was genetic, at least partially. The study had these glaring flaws.

    Strike One It had no control group, which normally classifies a study as junk science from the get-go.

    Strike Two It was comparing the ends of strands of DNA of self-identifying homosexuals. The study purported that the ends of the strands did not come out exactly 50-50, as the theory of such strands would have it. In science one does not compare something with measurement error in it with a theoretical quantity, in which there can be no measurement error. One is supposed to see the ends of the other strands as your measuring devices measure them, not according to theoretical perfection.

    Strike Three The study was of something at the limits of detection.

    All three strikes are well-known as such to those who do science. It is obvious to even a scientific layman that, even if homosexuality is genetically determined, the chances are close to nil that the gene for it would happen to be end up a the end of the chromosome. And how a non 50-50 ratio for how the genes are arranged at the end could could cause homosexuality is so unexplainable as to be implausible.

    Nevertheless, commentators were found to gush about what a wonderful study it was, how important, how well worded, and so forth.

    That very summer, I happened to be at the university where the study was done, where the newspaper announced:

    Strike Four A co-worker in the study said that the collection of data themselves was riddled with outright fraud.

    I am not absolutely certain that the study in “Strike Four” was the same as the study of Strikes One, Two, and Three, though it sure appeared to me to be the same study at the time. Even so, the first three strikes are quite enough to have the study classified as junk science by objective standards.

    Of course, none of these Strikes was sufficent to keep the study from being used in the arguments put before the Supreme Court as it was deciding the case whether to strike down as unconstitutional the law of Texas criminalizing sodomy (as it was called then) in that state. And, sure enough, the Supreme Court wrote its opinion in the belief that a genetic basis for homosexuality was scientific.

    After having seen all that, I have precious little belief in “scientific” studies that come out on highly charged political issues, especially those about to be used in arguments before the Supreme Court.

  37. Ebenezer_Arvigenius says:

    That is one of the reasons I take such an interest in history: there you know the authors didn’t have any interest in any specific outcome in the present day (though they may have had their hidden sets of agenda for their own times.)

    Here’s source from the 1st century AD. Happy now 😉 ?

  38. Justinian says:

    @matt bernius:

    Again, responding to matt bernius:

    BTW, this is the continual problem many of us who have experience in primary source research find with your style of argumentation. You have a habit of contextualizing your evidence, reading your own biases into your sources, and as above dismissing other evidence as fraught with bias.

    This venue is, after all, a blog, and is political. I don’t think I will be able to meet the scholarly standards you would like. It would be wonderful, I grant, if I could quote sources, unbiased and verbatim, and quote them abundantly, so that people could read them totally free of any intervention on my part. But there is only so much time I can devote to writing these posts, and my responses are, if anything, too long already.

    I know it sounds terrible to dismiss some other evidence, but, as you can see from my last post, it is hard not to nowadays. Everything can fall prey to corruption, and the scientific community is no exception. That still leaves a lot of science of high credibility, just not the stuff that is so recent and so easily tied to political causes as to be gravely suspect.

  39. mantis says:

    @Justinian:

    So you dismiss all science that touches on matters of public debate because of one study from 1995 that you cannot even name?

    Well, at least we know you are no scientist. If you were, you wouldn’t draw broad conclusions based on a single data point.

    By the way, you were probably referring to studies of the Xq28 gene in gay brothers in the mid-90s, or replications of those studies in the US and Canada. If you were, you seriously mangled pretty much all the details and your 3 “strikes” are false or nonsense. These were the studies that sparked the so-called “gay gene” meme in the media, which as usual grossly oversimplified the actual scientific findings and their meaning. A healthy skepticism of scientific writing in the media is most certainly warranted for all science, controversial or not.

  40. mantis says:

    @Justinian:

    It would be wonderful, I grant, if I could quote sources, unbiased and verbatim, and quote them abundantly, so that people could read them totally free of any intervention on my part. But there is only so much time I can devote to writing these posts, and my responses are, if anything, too long already.

    A good start would be to name the scientific study of which you give a multi-pointed criticism. It would take far less time than the rest of the comment about did to produce.

  41. mantis says:

    @Justinian:

    I forgot to respond to another falsehood:

    Of course, none of these Strikes was sufficent to keep the study from being used in the arguments put before the Supreme Court as it was deciding the case whether to strike down as unconstitutional the law of Texas criminalizing sodomy (as it was called then) in that state. And, sure enough, the Supreme Court wrote its opinion in the belief that a genetic basis for homosexuality was scientific.

    At least you identified the case in question so we can look at the opinion and see for ourselves how full of it you are. I can’t find anything in the oral arguments either. Would you care to explain where the study was introduced and where the court’s opinion mentions, let alone states a position on, the genetic basis for homosexuality?

  42. Justinian says:

    @mantis:

    In reply to mantis immediately above:

    Let me start with this wonderful quotation from Francis Bacon:

    And in these, and the like kinds, it often falls out, that somewhat is produced of nothing; for lies are sufficient to breed opinion, and opinion brings on substance. —Essay “On Vain-Glory”

    My post asserted:

    The Supreme Court wrote its opinion in the belief that a genetic basis for homosexuality was scientific. [Emphasis original]

    I still believe it did, though neither the study, nor genetics, were actually mentioned in the final opinion or oral arguments (as you show with your references). The idea that homosexuality was a genetic trait and that this was a scientific result were much brought into the public consciousness in the years leading up to this decision. The fact that the Court could find homosexuals a distinct class of person in a way that it could not find nudists to be a distinct class was probably due to the idea, in their minds, that homosexuality was “in one’s genes” whereas there was no evidence, (or, “evidence”) that nudism was.

    * * * * *

    That I would bring on a multi-point criticism of a study from 18 years ago of a study I did not even name (nor cannot, it being from so long ago), is weak indeed. I must grant you a “gotcha” on that.

  43. Pharoah Narim says:

    I think arguments regarding whether any human behavior has genetic orgins or not will become marginialize in time due to revealing new research in Epigenetics. Basically, its being demonstrated that experieces and behavior change expression of genes. Additionally, an identical twin study (can’t recall the name off the top of my head) that examined pairs with at least one gay sibling showed that in only about 50% of the pairs were both twins homosexual. To me that means there are strong genetic influences but also some enviromental influences as well. What it doesn’t mean that being homosexual is the same genetically as being native american, african american, man, or woman as 100% of identical twin pairs are the same in those regards.

  44. Spartacus says:

    @mantis:

    At least [Justinian] identified the case in question so we can look at the opinion and see for ourselves how full of it [he is].

    As I wrote on another thread, there’s no reason to take anything he writes seriously. These are just a few of his ridiculous beliefs:

    1. SCOTUS should allow state laws that violate the US constitution to stand since that was the will of the people of that state.

    2. The Declaration of Independence is the constitutional foundation for the US.

    3. The Law of Moses and the Institutes and Pandects of Justinian should determine whether DOMA or Prop 8 should stand. (I’m not making this up)

  45. Justinian says:

    In reply to Spartacus, immediately above:

    Yes you are making it up.

    1. You blithely assume that the disputed acts are unconstitutional. Yet that is the very issue before the Court. In fact, the way I once stated it is that “the Tenth Amendment is every bit as important as the Fourteenth.”

    2. I never asserted that the Declaration of Independence is the constitutional foundation of the United States. Obviously there is also the U.S. Constitution since then. But for the Courts not even to recognize the document, my word! Then we aren’t independent of Great Britain after all. None of this should be being decided in the U.S. Supreme Court at all: it should be being argued before the House of Lords.

    3. Nowhere in my posts did I deny that homosexual marriage should be allowed in those jurisdictions where it was so determined to exist by popular sovereignty.

    There is a famous quotation, a free rendering of something by Cicero:

    Who knows only his own generation remains always a child.

    My way of argumentation may strike you as antique, but not to take an historical view of the issues strikes me as childish. Yes, ever since you were born there was a United States. How was its existence legally cognizable? You probably never thought what happens without legal cognizance of the Declaration of Independence.

    Similarly, issues so broad as marriage are not determinable exclusively by looking at the U.S. Constitution: the particulars of marriage were nowhere in the room during the Constitutional Convention of 1787 or whatever room it was where the Fourteenth Amendment to it was drafted. Obviously one must look elsewhere.

    I certainly do not present my ancient sources as anything other than precedents worth looking at in the long stretch of history. I never say they are binding precedents. I never say that they are actually operative. I do say they are worth knowing about. All but the most reckless and judicially active Courts pause with cause before overturning precedents that span hundreds of years; surely they should when overturning precedents spanning thousands.

    Again, the Court is playing with fire, and at least several members of the Court know it, even if you do not. The “pedal to the metal” interpretation of a Constitutional provision can break this country apart, as it did when the Court drove the Due Process Clause so hard that both Congress and the States were left unable to prevent the “property rights” of slave holders from being exercised in their respective jurisdictions. (Scare-quotes for today’s sensibilities; they weren’t scare-quoted then.)

    That’s what can happen (at least it is what has happened) if you form all your ideas about a large social issue from only one clause of a written document, even if (especially if) that document is the Constitution of the United States.

    The free quotation from Cicero inspired Santayana to pen this, even better known line:

    Those who cannot remember the past are condemned to repeat it.

    Postscript: I also find it at least ironic that some of my prior posts on other topics in this general blog have been criticized as emphasizing overmuch the particular provisions of the U.S. Constitution. Now, I am criticized if I do not take the Equal Protection Clause (interpreted please in the year 2013 and not as at any former or later time) as the sole determinant of an issue.

  46. Spartacus says:

    @Justinian:

    Virtually all the elected, representative parts of the governments in this country have come out against granting marriage to homosexuals: state legislatures, Congress, and now voter initiatives. Yet the Supreme Court is likely about to be to tell all these bodies to enact marriage for homosexuals against their will.

    This is your sentence clearly implying that it is inappropriate for SCOTUS to declare unconstitutional a law that represents the will of the people.

    The way this issues is being discussed, both by conservatives and by liberals, is completely out of touch with the established constitutional foundation of the Union. In the Declaration of Independence, we find these words:

    This is you stating that the Declaration of Independence is the “established constitutional foundation” of the US.

    Yes, several justices on the Supreme Court will flatter themselves with thinking they are doing something “historic” with their coming decision. In this and in many other instances, not only they, but also their professors in Law School, show that they have not even the slightest passing acquaintance with the Law of Moses, the Institutes and Pandects of Justinian, or the Napoleonic Code. That is judicial history, and those works are of an historic class of writing. Truly, these justices on the Supreme Court don’t know what judicial history even is.

    This is you implying that the Law of Moses and the Institutes and Pandects of Justinian are relevant to whether Prop 8 and DOMA should stand.

  47. Justinian says:

    @Spartacus:

    In reply to Spartacus, immediately above:

    The “constitutional foundation” I meant was the broader one of federalism. I could see how one could read it as the Declaration of Independence alone, since I then immediately referred to that document. But, by “constitutional foundation” I meant federalism, something that James Madison, for example, would have found familiar. As was clear from later (and earlier) posts on this blog, many people treat the States as nothing.

    Yes, I do take ancient law as relevant to modern. There was a time when this was, in fact, the normative practice for jurisprudential disputation.

    The issue of homosexuality has already split the Anglican Church in two; in South Carolina it is splitting the Episcopal Church in two; and there are probably many other instances. I, personally, would not be at all surprised to see the country split in two over the issue. As we saw with the Dred Scott decision, there are limits to how much the Supreme Court can go in having a constitutional interpretation control a large, social issue.

    Repeating the central thesis: the issue before the Court is whether to disempower both the states and the federal government from being able to make any distinction between marriage between heterosexuals and relations between homosexuals, just as the Dred Scott decision disempowered both state and federal governments over controlling the practice of slavey— and this after both kinds of government had expressed their will on the matter in clearly worded acts duly passed by their respective legislatures. The swath of the country about to be “dissed” by such an interpretation is as great, if not greater, than that of the original Dred Scott decision. As the saying goes: the same causes have the same effects.

  48. matt bernius says:

    @Justinian:

    I know it sounds terrible to dismiss some other evidence, but, as you can see from my last post, it is hard not to nowadays. Everything can fall prey to corruption, and the scientific community is no exception. That still leaves a lot of science of high credibility, just not the stuff that is so recent and so easily tied to political causes as to be gravely suspect.

    The issue I continually have — as someone who is trained in the historical method and the scientific method — is that you have a tendency to rely on micro analysis for macro topics.

    The “scientific” practice — whether applied to science or history — is to let the micro stand for the micro and the macro stand for the macro. In other words, a specific historical document can tell you something about a specific historical moment. But to connect it to the macro or the current moment, one must place it in a web of connections and then look at the web as a whole.

    I realize that it’s possible to find moments where, within any culture, the fortunes of certain groups or classes wax or wane. But, what’s equally critical is to take the longer view and examine what remains consistent over the broad swaths of history. That is often best done by looking at when certain laws were established or overturned, and how they were interpreted at different moments.

    Likewise, the proof for your skepticism is to take a single paper, find flaws with it, and then dismiss all papers based on those flaws. What this fails to account for is the fact that the findings — in this case, instances of homosexual behavior in other animal species — have now been found by a statistically significant number of researchers and reports.

    Of course, you could respond that all of these reports are flawed. But to do so you need to also suggest a vast conspiracy — either intended or unintended — to “game” the results of reports to meet a social goal. And at that point, the question becomes how can you trust anything — and, again, in the practice of skepticism, that should include your own position (i.e. if you are seeing such conspiracies in any findings you disagree with, it that telling is something about the findings or something about you?).

    Further, on the topic of homosexual behavior in animals, it’s worth noting that it has long been reported, but in the past was classified under “dominance” rather than “sexual” behaviors. And, if one is pursuing the question of the effects of the social on scientific reporting, I think it’s worth asking how contemporary views on sexual behavior might have colored that reporting.

  49. Justinian says:

    @matt bernius:

    In reply to matt bernius, above:

    We are at the end of this thread, and we don’t know whether what we write here will be read by the other. All I can say that I have read your comment and appreciate it.

    I really should have clipped out the article of so many years ago which caused my confidence in the scientific community so much to tumble. It wasn’t just the original study: it was the bunch of other persons heaping praise on a study that had several marks of being junk science (and there are settled criteria for junk science, in fact). It was all too clear to me that the original researchers, together with all the yes-men, together with the reporter finding the yes-men ot say yes, were just pushing a homosexual-rights political agenda under the guise of doing science and journalism. It was certainly gross, but you are right: it was just one incident.

    Incidentally, you misused the term “statistically significant”. It is a technical term to mean that a certain p value (another technical term) came under 5% when a certain z or t or maybe chi-squared test was performed (yet more technical terms). And if you read that use of the term “statistically significant” somewhere, I can tell you right now that that must have been junk science, for the “statistically significant number of researchers” could not possibly have been a simple random sample (or randomized stratified sample, or so forth) from a larger population, and no z, t, or chi-squared test would make any sense at all.

    It is perhaps because I do know so much of science that I am able to see its underbelly, which, as you can imagine, is generally kept from public view.