Constitution Daily

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Town Hall debate: McConnell and Rosen on the same-sex marriage decisions

June 26, 2013 by NCC Staff


Michael McConnell and Jeffrey Rosen take up part three of their online debate about this week's big Supreme Court decisions. After their debates about the Fisher affirmative action case and the Voting Rights Act, our Town Hall participants break down the Windsor and Perry decisions.

The United States Supreme Court struck down the Defense of Marriage Act (DOMA) and rejected an appeal about Proposition 8 on Wednesday, in two significant wins for supporters of same-sex marriages. But there's a lot more to those decisions that affect a range of constitutional issues--as you'll find out below.

Rosen and McConnell

McConnell is the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School, as well as Senior Fellow at the Hoover Institution. Click here for more on McConnell.

Rosen is the president and CEO of the National Constitution Center and the legal affairs editor of The New Republic, and a law professor at George Washington University. Click here for more about Rosen.

We asked each expert to send us an opening statement that sums up their position on the long-term impact of the decision. You can read these statements below. Both McConnell and Rosen responded in detail to the points raised in the opening arguments.

We’d also like your comments below, in the area that allows you to comment using a Facebook account.

Also, the New Republic is sharing in this debate. Its version is at:

Opening statement from Michael McConnell:

The combination of decisions this morning leaves the definition of marriage to the states, at least for the time being. That is a good thing. But the DOMA decision is a logical mish-mash, portending more litigation and more instability.

The Court could have held that Congress lacks authority to legislate a definition of marriage, on federalism grounds – leaving this contentious issue to the states, where it belongs. And it could have held that there is no constitutionally sufficient basis for denying marriage to same-sex couples, by any government – a holding that would have brought same-sex marriage to the entire nation, much as the Court brought abortion to the entire nation in Roe v. Wade.

It did neither of those things. It seemingly held that the federal government acted within its enumerated powers in enacting Section 3 of DOMA, and it refrained from holding that same-sex couples are constitutionally entitled to marry.

Yet it held that Congress is forbidden to deviate from state law. The federal government need not grant federal benefits to all same-sex couples, but it must respect state laws if those laws treat the  couples as married.

This makes no sense. On the assumption that Congress does have the enumerated power to define marriage for federal purposes, it can be under no obligation to follow state law. Within its sphere, Congress can disagree with the states about questions of social policy. To say that the federal government may not take away something granted by state law is to say that the federal government had no power to make its own definition. DOMA does no “injury” to persons on the wrong side of the definition, any more than a state law that recognizes only gendered marriage does so. Congress simply adopted a different definition within the scope of its authority.

I believe Justice Kennedy wrote the opinion the way he did because he was not prepared to impose a single answer on the entire nation, but he was not persuaded by the federalism argument. Well enough; he succeeded. But the analytically unsatisfactory nature of this holding renders it an unstable solution.

On the other hand, I think Chief Justice Roberts’ majority opinion in Hollingsworth, holding that private citizens do not have standing to appeal in defense of a law they support, is 100 percent correct. The moment California’s lawyers announced they would not defend Proposition 8, Judge Walker should have issued a default judgment in favor of the two couples who were plaintiffs, allowing them to marry and dismissing the case.  Instead, grandstanding lawyers and unrestrained judges tried to make national law in a case where there was no disagreement between the real parties.

The Court’s decision raises an interesting technical legal question. The Supreme Court vacated the Ninth Circuit’s decision in the Prop 8 case for want of jurisdiction, as it should. This leaves the district court’s decision intact, as if not appealed. Ordinarily district court decisions lack precedential authority (even in their own district), and it is black-letter law that a court may order relief only in favor of the plaintiffs to the case. Because Hollingsworth was a suit by two couples, and not a class action, any relief should run only to them. But Judge Walker’s ruling contained language that seems to apply more broadly – and no one (with standing to appeal) appealed that. There will be a lot of smoke to clear in California before this gets sorted out. But I suspect that California officials, who do not want to enforce Proposition 8 anyway, will treat Judge Walker’s order as legal basis for extending same-sex marriage to the entire state.

I had been hoping the Court would take the occasion of these cases to explain why this matter properly belongs to the decentralized and democratic decision making structures of the states. In theory, that is what happened this morning. There is no nationwide constitutional rule, and no federal law. But instead of making clear that decentralized democratic decision making is best in principle, the decisions indicate that this was just a technical matter of jurisdiction. Instead of discussing these matters democratically in state legislative halls, I predict plaintiffs will be flocking to the courts for an answer.

Opening statement from Jeffrey Rosen

Thank you for another thoughtful post. Once again, I’m more of a fan of what you describe as a “logical mish-mash” than you are. In light of the Court’s precedents that laws based on animus can’t survive even the most relaxed judicial scrutiny, there was little question that DOMA had to fall. That was obvious in the oral argument [] when Justice Kagan quoted from the House Report on DOMA, and Justice Kennedy quoted from the same language from the House Report in his opinion: [].

The House Report announced its conclusion that “it is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage. . . . H. R. 3396 is appropriately entitled the ‘Defense of Marriage Act.’ The effort to redefine ‘marriage’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage.” H. R. Rep. No. 104–664, pp. 12–13 (1996).  The House concluded that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” Id., at 16 (footnote deleted). The stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.”

Ever since Justice Kennedy held in Lawrence v. Texas [] that moral disapproval of homosexuality isn’t a legitimate purpose for any law, the writing was on the wall for DOMA. The only other plausible justification for DOMA was an interest in maintaining tradition, but the Court held in the VMI case [] that maintaining tradition for its own sake isn’t a weighty state interest either. That left gay marriage opponents scrambling to come up with implausible justifications – such as “responsible procreation” -- [] the far-fetched claim that defenders of Proposition 8 offered in the Perry case.” That argument was so laughable that none of the justices even mentioned it.

In this sense, Justice Scalia was right in Lawrence to predict that it would eventually lead to the recognition of gay marriage, even though the Court stopped short of that step today. (The fact that Scalia refused to add “respectfully” to his “I dissent” in DOMA signals the strength of his feelings on the question.) But the fact that the Court refused to nationalize gay marriage in Perry is also a tribute to Chief Justice Roberts’ skills in building a bipartisan coalition on behalf of a minimalist result. The remarkable lineup in Perry, where Roberts’ decision that the petitioners lack standing to appeal the District Court’s order is joined by Scalia, Ginsburg, Breyer, and Kagan – must be ranked with the health care decision as another diplomatic tour-de-force for the Chief.

The puzzling question for me is the performance of Justice Kennedy in the Perry case. Joined by the unusual lineup of Thomas, Alito, and Sotomayor, he insisted that the challengers of Prop 8 should have their day in Court. But if the liberal justices were confident that Kennedy would join them in striking down Prop 8, wouldn’t they have joined him in finding that the Supreme Court had jurisdiction to hear the case? Please tell me if you disagree, but my surmise is either that the liberal justices weren’t confident that they could get Kennedy’s vote or that he made clear his willingness to uphold Prop 8.

A Kennedy vote against gay marriage would be surprising, and hard to reconcile with his obviously heartfelt and passionate defense of the equal dignity of gays and lesbians in the DOMA case. And yet at the oral argument, he was obviously conflicted about Perry, asking aloud why the Court had taken the case to begin with. Since it takes four votes to hear a case, is it possible that the Court voted to hear Perry over Kennedy’s objection but that, once he faced the need to decide, he wasn’t ready to vote for gay marriage, even on narrow grounds? Once again, that would seem surprising in light of his previous opinions. (Because her vote wasn’t necessary to dismiss the case, Justice Sotomayor was willing to join Kennedy, Thomas and Alito in making clear she would have decided the case on the merits.)

So that’s my first take-away from this historic pair of opinions: Justice Kennedy was willing to rule broadly for marriage equality when it came to striking down the federal DOMA, but not when it came to recognizing a national right to gay marriage that all states would have to obey. Perhaps these positions can be reconciled because of the twin commitment to individual liberty and states’ rights that he defended so vigorously in the DOMA opinion. But it still strikes me as a big surprise.

Looking forward to hearing your final thoughts and thanks again for a great week of debate.

Response from Michael McConnell

I don’t see much disagreement between us. Of course, those who support the traditional definition of marriage will point out that defending marriage is not a sign of “animus” or “desire to injure,” but a serious moral disagreement, to which our Constitution does not speak.

The various quotes from the House Reports, with one possible exception, are animus-free. But you and I are not moral authorities, and I doubt we have much to contribute to that aspect of the debate.

The question for us is legal doctrine and legal coherence, which relates to how contentious questions are decided in a democratic federal republic – not necessarily the answers that should be reached.

We seem to agree that Justice Kennedy has sought to find a formula that enables him to invalidate the denial of same-sex marriage at the national level without doing so in every state.

Federalism would have provided such a path, but he did not take it. The path he did take strikes me as a logical mish-mash. You profess yourself happy with that, but do not supply a logical defense. Do you just see this as an exercise of judicial prudence, without real doctrinal persuasiveness?

Response from Jeffrey Rosen

It’s true that those who support the tradition definition of marriage argue that defending marriage is not a sign of “animus” but a serious moral disagreement to which the Constitution does not speak. But Justice Kennedy and the Court rejected that argument in the DOMA case today, just as they rejected it 10 years ago in Lawrence. By equating moral disapproval with animus, the Court has effectively decreed the end of morals legislation, as Justice Scalia accurately predicted in Lawrence. That’s why I would have thought the writing was on the wall for the traditional definition of marriage, and why I’m surprised that Justice Kennedy failed to vote with the liberals in the Perry case today.

As for doctrinal persuasiveness: I would have preferred that the Court decide Perry narrowly and on the merits, holding that California, having granted a right, can’t take it away because of moral disapproval. That holding would have been consistent with Justice Kennedy’s position in Lawrence, and with the position he embraced in the DOMA case. But for reasons known only to Kennedy, he failed to embrace that view. Perhaps some future Bob Woodward will tell us why.

Thank you again for an illuminating week of debate. It was truly an honor to discuss these cases with you and exactly the kind of civil, bipartisan dialogue that the National Constitution Center and The New Republic are committed to host

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