DOMA: Analysis and consequences of SCOTUS ruling

Next week, SCOTUS is likely to strike down the Defense of Marriage Act when it considers two cases involving California’s Prop 8 and federal tax implications on same-sex marriages.  Below is a brief synopsis of each case followed by a short discussion of possible consequences and an interesting argument as food for thought.

SCOTUS will hear two cases, the first being Hollingsworth v. Perry.  The parties, same-sex couples challenge the voter initiative Prop 8’s constitutionality.  California had allowed same-sex marriage and had issued marriage licenses to couples until Prop 8 was passed, amending the California constitution to define marriage as between opposite sexes.  Marriage licenses were then no longer issued, leaving same-sex couples without the ability to be married, while some had gotten licenses before Prop 8 was passed. 

At the core of the case is whether the Equal Protection clause allows rights to be given (pre-Prop 8) and whether those rights can then be taken away (Prop 8) and for what reason would justify the deprivation of rights.

The Equal Protection clause allows for discrimination between individuals if a state actor can show the requisite justification.  SCOTUS has set different standards for states of the federal government by the type of discrimination that is involved.  For example, discrimination based on race has the highest level of scrutiny and requires a state to show a state interest.  Other types of discrimination deserve lesser standards of review, such as intermediate scrutiny for gender-based discrimination with the caveat that the discrimination cannot be based on archaic stereotypes of gender roles.

The second case, Windsor v. United States, challenges DOMA by taxing the surviving spouse ‘s inheritance at a rate higher than if the couple were married.  The catch is: the coupe was. Under New York law, the couple had married and the spouse had died, willing his inheritance to his surviving same-sex spouse.  DOMA disallows the federal government to recognized any marriage that is not between a man and a woman and taxed the inheritance at a higher rate.

The question is whether the federal government can show a substantial government interest in taxing the couple at a different rate.  

Although rulings will not be expected until at least June, implications may become apparent much sooner.  State politicians may react by either defining marriage (or redefining it,) or Congress may step in and try to enact different legislation that will try to effectively limit the rights of same-sex couples having marriage licensees from the handful of states that grant them.

Now that the debate over same-sex marriage may be at its end legally speaking, the moral debate will likely be revived.  That might be harsh language considering the moral arguments having never really died off, but the legal debates have seemed to be the spotlight.  

One interesting perspective, a slippery slope argument, makes the insightful prediction that the legal battles for same-sex marriage may make way for the legal arguments for polygamy and other moral depravity.  The author, a law student at Yale, I think, made the argument in a law review article, which I would love to track down again.  The argument goes like this:  same-sex advocates have made the Equal Protection argument and have urged advocates not to get into the morality of homosexuality.  By avoiding the morality, advocates have a better chance at winning in the courtroom and avoid instigating inflammatory rhetoric outside it.  Now, imagine years from now polygamists making this claim that we should ignore the morality of such conduct and argue the state should allow for such marriages on constitutional principles.  

It’s an interesting argument and what might be even more captivating is if decades from now polygamists get their day in court.

Executive Inaction: A New Era of Leadership

The three branches of government make laws, interpret laws, and enforce laws, but what happens when the executive chooses not to enforce or defend laws?

In recent years both federal and state governments have avoided executing laws they disagree with for political gain.  First, consider the recent decisions by the Obama Administration.

The most popular executive inaction is the Deferred Action for Childhood Arrivals (“DACA”).  The Obama Administration has chosen not to remove children who were brought into the country illegally.  Beneficiaries of the program do not gain legal status, but are able to get work authorization are given two years of relief from removal, their removal file is essentially put at the bottom of the pile.

The program, not mandated by statute, gives the Administration broad discretion.  For example, immigration law considers all crimes even if they have been expunged from an applicant’s criminal record, becoming a real problem for many aliens who have juvenile records or convictions from decades ago.  The Administration, however, if free to disregard these convictions under the DACA program because it is simply exercising prosecution discretion.  Take for example a prosecutor in a small town.  A person is arrested for DUI and the prosecutor considers filing charges, but decides not to because the accused is an outstanding member of community.  The prosecutor isn’t mandated by law to file charges, it is within their discretion and they may decide capriciously and/or arbitrarily. 

The executive is also charged with defending acts of Congress is their constitutionality is challenged in court.  The Obama Administration has refused to defend certain laws Congress has passed including, most notably, the Defense of Marriage Act (“DOMA”).  In early 2011, Eric Holder released a statement explaining the Administration and the Justice Department had concluded DOMA violated equal protection and the Department of Justice would no longer defend challenges to the law that bars the federal government from recognizing valid marriages of same-sex couples. Subsequently, in March of the year, House Republicans retained former Solicitor General, Paul Clement to intervene and defend DOMA on appeal.

State governments have also  begun to utilize the power of executive inaction.  In the same vein as DOMA, California Governor Jerry Brown refused to defend an appeal to the Ninth Cricuit of Appeals challenging the constitutionality of Proposition 8.  The Circuit court certified the California Supreme Court to determine whether a county could have standing in defending the law.  It ruled a county did have standing and the Ninth Circuit then heard the case.

Both the federal government and state governments have used the executive inaction as a tool in governing.  The Obama Administration has even refused to enforce federal law, allowing states to pass legislation in conflict with federal law, granting their citizens protection from federal prosecution.  One example is the Administration’s promise to not prosecute those in compliance with state legalization of marijuana.  

Before the complete legalization in Washington and Colorado, the Administration had said it would not federally prosecute individuals in clear compliance with state law.  This included, at the time, a handful of states that allowed access of medical marijuana, which included Michigan.  The federal government did prosecute several outliers in which individuals were not in “clear compliance” with state law, growing excess amounts of marijuana and selling the product on the black market.  It is still unclear whether the Administration will do considering the absolute legalization in Colorado and Washington.

Executive inaction can be a useful tool for the executive to garner support with the electorate by refusing to enforce policy or law.  Many may applaud the Administration, but the tenuousness should be fully realized.  Just as easily as an administration can refuse to execute law, a new administration can be voted into office.  Many were closely watching the presidential results in November with the thought of the DACA program being absolved in January with the possibility of a new executive.