Liveblogging: the marriage cases

by Walter Olson on June 26, 2013

I’m going to liveblog some reactions to today’s expected marriage rulings, below the line. To see more recent comments, refresh (it won’t auto-refresh, unlike the liveblogs at places like SCOTUSBlog).

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Randy Barnett, SCOTUSBlog: “Federalism marries liberty in the DOMA decision.” And a Trevor Burrus podcast for Cato.

Phenomenal! Cato Institute went 15 for 3 at the Supreme Court this year.

Flashback: Windsor decision upheld today was written by Second Circuit’s Dennis Jacobs, leading conservative and a favorite judge of the Federalist Society (and of mine). And earlier, from my colleague David Boaz, a post on Judge Vaughn Walker, who struck down Prop 8 and who like Jacobs has faced vitriol at various points from ostensibly progressive quarters.

Don’t underestimate Sen. Rand Paul (R-Ky.)

AutoCorrect keeps trying to correct “legalistic argle-bargle” to “argyle-barf”

Just minutes after it was issued, the Windsor decision made a difference for one couple:

At 10:30 a.m. EDT this morning in a New York Immigration Court, attorneys from our law firm (Masliah Soloway) requested and were granted a continuance in removal (deportation) proceedings for a Colombian gay man married to an American citizen for whom we had filed a marriage-based green card petition last year. A copy of the 77-page Supreme Court decision in United States v. Windsor was delivered to the court by our summer intern, Gabe, who ran five blocks and made it in time for the decision to be submitted to the Immigration Judge and to serve a copy on the Immigration & Customs Enforcement Assistant Chief Counsel. DOMA is DEAD and it had its first impact on a binational couple within 30 minutes of the Supreme Court ruling.

Hoping it will make the difference for my friends Eleanor and Fumiko as well.

Kennedy’s majority opinion in Windsor cites the “federalism brief” mentioned below, but disentangling the federalism strands from the “equal liberty” strands is likely to keep scholars busy for a long while.

I’ll be on KFMB San Diego at around 9:20 a.m. PDT to discuss today’s marriage rulings, and WBAL Baltimore at around 2:35 p.m. EDT (audio link).

In re Burrus (1890), key cite on domestic relations as state-law domain, cited in both Adoptive Couple yesterday and Windsor today. No relation to my Cato colleague Trevor Burrus, that he knows of.

GOP platforms for years have been decrying the unfairness of the death tax, but it took Edith Windsor to do something about it.

Here’s my colleague Ilya Shapiro’s reaction post at Cato at Liberty: “Equal Liberty Carries Day at SCOTUS

From Josh Blackman, “The Top 10 Most Liberty-Oriented Kennedy Quotes in Windsor

Both Perry and Windsor remind us that standing issues are regularly 1) orthogonal to underlying substance; 2) important for own sake.

Per Kevin Russell at SCOTUSBlog, “The Walter Dellinger amicus brief, written by Irv Gornstein, is instrumental in the Court’s standing opinion in Perry.”

As an aside on DOMA, the all-round coolness of Edith Windsor as a personality certainly didn’t hurt her side. Here’s a recent NY Times interview in which she certainly wasn’t toeing anyone’s political line. There’s a fan site here.

Perry finds 5-4 that there isn’t standing. Seldom-seen-together quartet in dissent: Kennedy, Thomas, Alito, Sotomayor. Kennedy did seem quite pro-standing during oral argument.

The Windsor dissent with the extensive rehashing of current literature about the same-sex marriage debate (including cites to Andrew Sullivan, Jonathan Rauch, Maggie Gallagher, and the Princeton theocons) is Alito’s with Thomas partially joining. Scalia goes off on a different tangent. (I should mention that early in my career I worked for Justice Scalia back when he was editor of Regulation magazine, now at Cato, and no, I have no reason to believe that has influenced him.)

Amy Howe at SCOTUSBlog says Kennedy opinion invokes “respect” as concept, which is “vintage Kennedy.”

Per @RyanGKoopmans, Roberts says in dissent that the court holds there is no jurisdiction to decide Perry.

Windsor decision here. Unified majority, which is important. Three different dissents: Roberts, Scalia with Thomas joining and Roberts part-joining, and Alito with Thomas part-joining. The disunity is on the pro-DOMA side.

Per SCOTUSBlog, Kennedy cites federalism, specifies state-lawful marriages. That’s a hint there won’t be 50-state #ssm per Perry.

First case is DOMA. Struck down as unconstitutional. Kennedy joins four liberals in majority.

Some Cato resources on SSM are here. I moderated a panel discussion of the issue at Cato in March which you can watch here and here. Overlawyered’s past coverage of same-sex marriage is here.

The Cato Institute, where I’m a senior fellow, filed amicus briefs in both marriage cases, Perry and Windsor, jointly with the Constitutional Accountability Center, usually its opposite numbers in Supreme Court litigation. Despite disagreements on many other issues, Cato and the progressive legal thinkers at CAC agreed that the tradition of constitutionally protected liberty extends to freedom to marry. Links: Windsor, Perry. In addition, numerous legal scholars with connections to Cato, including Jonathan Adler, Randy Barnett, Dale Carpenter, and Ilya Somin, signed a separate “federalism brief” arguing for the striking down of DOMA on grounds of improper intrusion into state power.

{ 7 comments }

1 Robert 06.26.13 at 12:54 pm

I’m in a same-sex marriage in CA (one of the 12,000 couples whose marriage was allowed to stand despite proposition 8.)

Any guesses as to whether I’ll be able to refile Federal tax returns as “married” (of course, only if it comes out in my favor) for the years where my marriage wasn’t recognized Federally?

2 Walter Olson 06.26.13 at 1:29 pm

Don’t know, and it may depend on IRS policy guidance, which may well turn out to allow amended filing for years when there was a valid state marriage.

I’ve already linked it when it came out, but here is one of my relatively rare excursions into print about my personal stake in the issue. I may stand to benefit (like Edith Windsor) from elimination of the federal tax on spousal inheritance at death; in various other respects, such as computation of assets for purposes of university tuition or nursing-home outlays, I expect the potential impact will be negative, but will cheerfully accept that.

3 Malcolm 06.26.13 at 6:07 pm

I hope people will now understand why we in Australia have consistently resisted the efforts of politicians to force on us a Bill of Rights (apart, of course, from the original one of 1689). Experience shows that it allows unelected judges to push their own political opinions, overruling the plain meaning of the law, the will of the people, and common morality.
The Supreme Court of the United States has long been a bleeding scandal in the English-speaking world, and one we have done our best to avoid.

4 John Burgess 06.26.13 at 8:59 pm

@Malcolm: Oh, gee! And here I was, thinking that the Bill of Rights and the Supreme Court (even if not perfect) were the best things to happen to civilization…

5 Isab 06.26.13 at 9:38 pm

“I’m in a same-sex marriage in CA (one of the 12,000 couples whose marriage was allowed to stand despite proposition 8.)

Any guesses as to whether I’ll be able to refile Federal tax returns as “married” (of course, only if it comes out in my favor) for the years where my marriage wasn’t recognized Federally?”

You seem to be under the mistaken impression that married people get a choice under the federal tax code to file as either “married” or “single” based on which one yields the least tax liability.

Nothing could be further from the truth. When you are married, your taxes can be filed two ways. Either married filing jointly, or married filing separately. There must be agreement. Both members have to use the same filing category.
Each of these usually yields a generally higher tax liability than if a two earner married couple could each file as a single tax payer on their individual income.

I suspect there is going to be a lot of screaming when April 15th rolls around again.

6 Robert 06.27.13 at 12:04 am

I understand this perfectly, Isab. But for prior years, if it benefits me (unlikely!), I may be able to re-submit. The IRS is not likely to force people to amend their returns. Though you never know if they can squeeze more money out of me.

I realize I have no choice moving forward.

Unfortunately, I understand taxes all too well. I am unfortunate enough to earn money. The Majority of Californians marched to the polls last year to raise my taxes by a point–while not raising the taxes for 99.5% of the taxpayers. Given that I have to pay an extra $17,000 under this law–retroactively–I would rather that CA Prop 30 have been struck down than CA Prop 8.

7 Isab 06.27.13 at 11:30 pm

I am sympathetic to your tax situation, but here is what led to my confusion. When you talk about “your” tax liability above, you use the words “I’ll” and “My”. This confused me as to your understanding of the rules for married filers. When my spouse and I talk about our tax return, we use the words “We” and “our” which reflects the joint nature of our collective tax liability.

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