Windsor: Tarring 'the political branches with bigotry'

Reuters

Article Highlights

  • Once the majority can claim bad motive on the part of Congress, any law that makes gays worse off is struck down.

    Tweet This

  • Gays have become a constitutionally-protected class due higher protections than even racial minorities.

    Tweet This

  • I happen to agree with the policy result.

    Tweet This

Wednesday’s gay-marriage opinions deflated the balloon on the Prop 8 case, but made DOMA the centerpiece. On first glance, the decision in the DOMA case, United States v. Windsor, is embarrassingly deficient. It does not identify the right at stake clearly, it does not specify the standard of review, and it does not explain why Congress is assumed to be acting purely out of bad motives. Most of the opinion is devoted to a discussion of federalism, but most of it is tangential. The Court cannot quite hold that Congress is not allowed to adopt definitions of words like “marriage” for federal-law purposes, so it instead says that the federal definition shows an intent by Congress to harm gays. The conclusion assumes, without explicitly saying so, that 342 Members of the House, 85 Senators, and President Bill Clinton were all guilty of antigay bias in 1996, when DOMA was enacted. As Chief Justice Roberts says, “I would not tar the political branches with bigotry.”

Once the majority can claim a suspected bad motive on the part of Congress, any law that makes gays worse off is immediately struck down. No analysis of the government’s other purposes, no questions about whether the law is tailored to meet that purpose (on which the Court spent so much time and energy in the affirmative-action and voting-rights cases). So in this respect, Windsor is actually quite an expansion from Lawrence v. Texas, where the Court struck down Texas’s anti-sodomy law because, it found, the only purpose of the law was motivated by hatred of gays. Here, the Court says that Congress had a desire to mistreat gays, but it cannot claim as it did earlier that this was its only purpose. There is little doubt that Congress had other, legitimate motives that did not have to do purely with discrimination, such as standardizing federal law across the nation, reducing federal costs, and so on. On this score, gays have become a constitutionally-protected class due higher protections than even racial minorities — which shows how the Windsor majority has contorted the Constitution to reach its preferred result. I happen to agree with the policy result — allowing gays to marry — but the Constitution does not allow the Court to impose it on the country in this way.

Also Visit
AEIdeas Blog The American Magazine
About the Author

 

John
Yoo

What's new on AEI

How the Common Core went wrong
image Election countdown: The mood, measurements, and mechanics
image Rubio's defense speech: Fearless, informed, and refreshing
image Sorry Kerry, there is little role for Iran in fighting ISIS
AEI on Facebook
Events Calendar
  • 22
    MON
  • 23
    TUE
  • 24
    WED
  • 25
    THU
  • 26
    FRI
Monday, September 22, 2014 | 2:30 p.m. – 4:00 p.m.
Policy implications of the new US labor market normal

We welcome you to join us as a panel of economists discuss US wage and price prospects in the coming months and the implications for the Federal Reserve’s current unorthodox monetary policy.

Event Registration is Closed
No events scheduled this day.
No events scheduled today.
No events scheduled this day.
No events scheduled this day.
No events scheduled this day.
No events scheduled this day.
No events scheduled this day.