Should the Supreme Court Defer to Congress and Uphold the Defense of Marriage Act?

Writing at The New Yorker, Richard Socarides reviews Chief Justice John Roberts’ recent vote to uphold Obamacare and suggests that Roberts might be willing to side with his liberal colleagues on another hot button issue that is soon to reach the Supreme Court: gay marriage. As Socarides sees it:

in these marquee gay-rights cases facing the Court next term—as American public opinion, especially among young people, shifts rapidly towards greater equality—Roberts may find the very kind of “legacy” issues around which he has shown a willingness to break with his more conservatives colleagues. Put another way, these cases will help define what freedom and equality look like in America, perhaps for decades. Will Roberts want to be on the losing side of history?

One of the marquee cases he refers to stems from the May ruling by the U.S. Court of Appeals for the 1st Circuit which struck down several provisions from the federal Defense of Marriage Act (DOMA). Paul Clement, the Republican lawyer representing the House of Representatives in its legal defense of that law, has asked the Supreme Court to take up the case, and it’s very likely the Court will do so in its upcoming term.

So let’s assume DOMA will be the first gay rights case to reach the Roberts Court. Is Socarides’ right that the chief justice will again show "a willingness to break with his more conservative colleagues"?

I wouldn’t bet on it—at least not if we take Roberts at his word. Remember that Roberts framed his vote upholding the Patient Protection and Affordable Care Act as an exercise of judicial restraint, writing in his opinion, “It is not our job to protect the people from the consequences of their political choices.” I don't see why Roberts wouldn't rely on that same principle and vote to uphold the Defense of Marriage Act. Both Obamacare and DOMA are duly-enacted federal laws, after all.

If you cheered the chief's ruling on health care, don't be shocked when he grants the same deferential treatment to a federal law you don't like.

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  • BarryD||

    Hey, where's the Alt Text under Roberts' smirking mug?

    Suggestion: "DOMA violates Equal Protection, so let's just call it a TAX on gay people!"

  • ||

    It is not our job to protect the people from the consequences of their political choices.

    YES IT IS YOU ASS. It is also to protect the people who didn't make those political choices but weren't in the majority. What a fucking tool.

    If you cheered the chief's ruling on health care, don't be shocked when he grants the same deferential treatment to a federal law you don't like.

    Then Roberts will be a horrible, horrible person again and they will hatesesssss him again.

  • Tulpa the White||

    You do realize that PPACA wasn't a Bill of Rights case, do you?

    If Congress had changed the wording a little bit to expressly call the mandate a tax, it would have had no effect on how the law operates and have rendered the constitutional argument against it moot.

  • Mickey Rat||

    No, Tulpa, it would have rendered the constitutional argument different. The federal government's taxing power is actually more constrained than most people seem to think.

  • Calidissident||

    Exactly. The mandate is not a direct tax, but it's not an income tax. At best it's a mix between an income tax and a direct tax on the uninsured. And direct taxes (besides income taxes) that are not apportioned are unconstitutional. Also, the federal government was not supposed to be able to use the tax power to regulate things they did not have the power to otherwise regulate. And I believe there is even a court case from the early 1900's that contains this precedent

  • Juice||

    The feds regulate firearms using taxes. They also once used them to regulate marijuana. I'm not sure what else they regulate using taxes.

  • sasob||

    A tax on firearms or marijuana would be considered an excise tax and therefore constitutional.

  • Calidissident||

    The feds do a lot of things that aren't constitutional. The point is, the taxing power was originally only supposed to give the government the power to raise the money necessary to carry out it's constitutional duties

  • BarryD||

    "I don't see why Roberts wouldn't rely on that same principle"

    What principle? It was, indeed, a monumentally clever excuse, but I don't think that anyone can call it a principle.

  • John||

    as American public opinion, especially among young people, shifts rapidly towards greater equality

    Good to know that the meaning of our Constitution is determined by the whims of generation retard.

  • Mo||

    I agree. The Boomers have too much political sway.

  • John||

    as American public opinion, especially among young people, shifts rapidly towards greater equality

    Good to know that the meaning of our Constitution is determined by the whims of generation retard.

  • Rich||

    I don't think that anyone can call it a principle.

    Well, then let's call it a tax.

  • Eduard van Haalen||

    Just don't call it a comeback.

  • ||

    No court should ever defer to any legislature. That is the whole point of checks and balances.

  • wef||

    Tag team: Roberts jumps out, Kennedy jumps in. Roberts scores "conservative" points, while Kennedy already has rep. In any event, political class gets what it wants.

  • Registration At Last!||

    I'm sure that if the Obamacare individual mandate only applied to gay people, while only straight people were allowed to opt out, the court would have found it unconsitutional. That is the proper analogy to DOMA.

  • Adam.||

    “It is not our job to protect the people from the consequences of their political choices.”

    It never fails to blow my mind that this is something a supreme court justice said. It is exactly their job to protect people when shady political choices are unconstitutional. Really, it's their only job.

  • Another David||

    And it never fails to blow my mind how people twist Roberts' words into something even dumber than they already are. He's saying the court doesn't get to strike down a law just because they think it's stupid, but only if it's unconstitutional or self-contradictory or overly vague or otherwise void. Whether you or I think Obamacare is any of these things is beside the point of that passage.

  • Tulpa the White||

    That quote is so being taken out of context.

    Roberts wasn't saying that "this is unconstitutional but we defer to Congress' judgement". He was simply saying that just because it's a horrifically bad law doesn't mean the court has to strike it down.

  • Mickey Rat||

    Except Roberts believed the law was unconstitutional on the grounds the government defended it on. He went way out of his way to find a flimsy excuse to uphold it, and wrote that crock of shit to rationalize his actions.

  • mad libertarian guy||

    Especially considering that Obamacare isn't the result of anyone's political choice but the exact number of Democrats who could be somehow bribed in to consenting.

    This bill was rammed through Congress without so much as one fucking Team RED vote. That hardly represents the political choices of an entire nation.

  • BigT||

    “It is not our job to protect the people from the consequences of their political choices.”
    ...except when those choices violate the Constitution.

  • Johnimo||

    My bet is that Pudd'nhead Roberts will suddenly find meaning in the Tenth Amendment and simply throw the law out without further defining marriage. Such a decision if joined by a majority will make both sides angry as it will allow the States to continue to make their own diverse laws.

  • Mo||

    Roberts is upholding DOMA. No doubt about it. Kennedy on the other hand ...

  • Paul.||

    *yawn*

    The SCOTUS has established that Congress can do whatever it wants, because of the "whatever-it-wants" clause in the constitution.

    The credibility of the court is gone. Sure, they may occasionally vote in a way that's agreeable to libertarianism. But it's just noise in a chaotic equation.

  • NoTalentAssclown||

    so PRO: He will uphold the DOMA, citing judicial restraint, angering those on the Left who were just praising him on Obamacare for doing essentially the same thing, Hypocrisy will ensue...

    CON: HE GETS BOTH DECISIONS WRONG!

  • Paul.||

    Like a broken compass, the court sometimes points in the right direction.

  • GlenchristLaw||

    The Fourteenth Amendment is not the Commerce Clause, and Romer v. Evans is not Wickard v. Filburn.

    Roberts may well vote to uphold DOMA, but "See Obamacare" won't be the rationale.

  • VG Zaytsev||

    Only one thing is certain.

    No matter how irrational Roberts decision or how specious his rationalizations that justify it;

    A certain Orange Line Cosmo poster here will hail it as brilliant.

  • Westmiller||

    Roberts does have a principle:
    "Do whatever is necessary to avoid having your Harvard Alumni friends (particularly Lawrence Tribe) call you a 'partisan hack' in public."

  • rantbot||

    There seems to be a serious misapprehension about the function of the Court here.

    One of the reasons we have a federal court at all is to resolve conflicts between laws. In Marbury v. Madison, John Marshall approached the Constitution itself as a law, in fact the supreme law of the land. A lesser law which conflicted with the Constitution must fall. This insight is the basis for all subsequent instances in which the SC has struck down laws as unconstitutional.

    However, this is widely misunderstood as making the SC a sort of poor man's Congress. This suits activists just fine; all they have to do to push their agendas, whatever they might be, is pervert a few Justices, a far easier job than perverting hundreds of legislators. And so we have had too many cases of "judicial activism," in which the Court acts to second guess Congress on purely political grounds, hiding behind the fig leaf of conflict with the Constitution, even when the Constitution says nothing at all about the law being challenged. Anything with a decision involving "emanations of penumbras" is a good example, as well as some decisions which don't mention either emanations or penumbras at all, such as Roe v. Wade, but are still based on "rights" which don't actually exist, so far as revealed by the text of the Constitution.

  • rantbot||

    Where was I when the comment system so rudely interrupted? Oh, right ...

    In other words, the courts have strayed seriously from their intended function when they find acts of the legislature to be unconstitutional when they have to read things into the Constitution which simply aren't there.

    What Roberts seems to be saying is that he rejects the perverse idea that the Court should act as a little Congress of last resort. The Congress is free to make its own mistakes. This is what the concept of "separation of powers" means. The Court only intervenes when a law passed by Congress is in conflict with the Constitution. This does NOT mean that Roberts is deferring to Congress. It means that he is deferring to the Constitution.

    All that said, it certainly looks like Roberts is shaping up to be a real weirdo, and recently droppped a couple of major clangers on us. But this particular statement of his seems solid enough.

  • 16th amendment||

    Easy. Just make gay people pay a tax, or penalty if you prefer the term, for being gay. Then it will be upheld under the taxing power of the freest, bestest, noblest country in the world!

  • Michael Ejercito||

    The Supreme Court held in Davis v. Beason, 133 U.S. 333 (1890)

    [C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.


    id. at 344, 345, quoting Murphy v. Ramsey, 114 U.S. 15 at 45 (1885)

    The Court will have to confront that holding when DOMA comes before it.

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