SCOTUS, DOMA, and Neutrality in Law and Politics

Recently, the Supreme Court of the United States (SCOTUS), issued a decision on the case United States v. Windsor. SCOTUS concluded that the Defense of Marriage Act was unconstitutional, as it violated the equal liberties described in the Fifth Amendment of the US Constitution. This is a small musing on the idea of political neutrality as it exists within my reading of that case.

Within both majority and dissenting opinions of the Windsor decision is a battle about what it means to be neutral on certain issues—to not discriminate between people or acts based on certain viewpoints. It is a fairly popular appeal, often seen in debates about freedom of speech [1].  Most every time someone invokes the right to freedom of speech, their argument boils down to the idea that the law should be neutral on, rather than dictate what views can and can’t be expressed.

In this case, the majority opinion is that the sexual orientation of a married or marrying couple shouldn’t matter, and that the federal government should remain neutral on this in making law:

DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. [From the synopsis]

The court then claims that while laws of marriage differ between states, they are consistent within states. DOMA upends that consistency, consigning same-sex couples to a different, lesser treatment.

What is interesting for my purposes is that the dissent also invokes neutrality [2]. Justice Scalia wants to say that the court violated its mandate (see p. 12 of the majority decision for more on that), and should have remained silent on DOMA until SCOTUS was required to rule on a case. He goes on to say that the proper role of the court is to remain neutral on this issue. Let individual self-governance and viewpoints win the day:

Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves. Since DOMA’s passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices—in other words, democracy…

…In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. [pp. 24-25 of Scalia’s dissent]

Scalia’s solution is SCOTUS’ silence, letting self-governed actions based on the beliefs of individuals proceed through individual suits, rather than rule against a swathe of (potential) cases.

Two versions of neutrality exist here—one, that the law should be neutral about what  marriage is but allow people to pursue their own substantive ideas; the other, that the law should be neutral on what conceptions ought to be allowed, and let that issue resolve itself on a case-by-case basis.

How does one navigate this [3]?

The answer is that you don’t—neither concept is properly “neutral.”  Any position taken, even ones that seek some concept of not judging an act, idea, policy, work of art, whatever, must perforce take a position on what is not acceptable. Neutrality isn’t neutral. Not judging is judging—even if it is only judging that we shouldn’t judge.

The majority opinion in Windsor is of that kind:

DOMA’s principal effect is to identify a subset of state sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency…By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect…. DOMA undermines both the public and private significance of state sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. [pp. 22-23 of the decision]

This neutrality—that is, striking down DOMA because it discriminates against a viewpoint—is important because equality, and the basic respect a person is entitled to in getting married to the person they choose, are both incredibly valuable. Equal respect and treatment is what is important, not the neutrality about viewpoints.

In arguing that we should be neutral about what views count in court, Scalia (and Roberts, who forwards a similar position but is slightly less pissy about it) wants to say that the liberty of people to govern themselves as they please under the current system of laws is more important than equal rights to marry. That being fair to all the people who don’t want people to get married to whomever they choose is more important. The court should only step in to rule on the constitutionality of a verdict when it would decide a case (which it doesn’t for DOMA).

Equality versus liberty. That’s what is at stake here.

But wait, you might say. In striking down DOMA, we deprive people of their liberty?

Of course you are.  Ruling DOMA unconstitutional deprives people of the liberty—one of them, at least—to be bigoted through the use of the law. SCOTUS thought, and I agree, that equality is more important than the liberty to treat people as second class citizens through the legal sanction of DOMA.

The point is, however, that neither is neutral—both are charged with value and the contest comes down to what is more important. A couple of days ago, the court decided that equality was more important.

Justice Alito, to his credit, acknowledges this for us in his dissent, though probably not in the way he was intending:

We have long made clear that neither the political branches of the Federal Government nor state governments are required to be neutral between competing visions of the good, provided that the vision of  the good that they adopt is not countermanded by the
Constitution. [p. 16 of Alito’s dissent]

I want to take this a bit further however, in claiming that we can’t be neutral. The constitution, according to SCOTUS, isn’t neutral. The fifth amendment privileges equality. It should.

This way of thinking has broad implications. It isn’t acceptable, from what I’ve outlined, to defend a policy, or right, based on a commitment to neutrality.  The values promoted by not allowing one position to count for more than another when we enact policy should win the day. That is, what should count is the value of dictating—or not dictating—what claims are to be considered valuable when we make law.

SCOTUS ruled that it is more valuable to not allow the law to view someone differently based on their sexual orientation, and in doing so it made the judgement that the converse view is a view worth excluding from lawmaking. That’s not neutral—that’s taking a stand. Scalia, to his credit, actually notes this:

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples, see ante, at 25, 26. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. [p. 24 of Scalia’s dissent]

I sure hope so.

[1] All over the place, and for lots of different reasons.  Sometimes against direct violation such as the iconic Schenck v. United Statesbut also in terms of legislation that unfairly limits expression by certain classes of people indirectly, such as Lamont v. Postmaster GeneralOn evaluative neutrality, see Larry Alexander (2003), Is there a right to freedom of expression? (Cambridge: Cambridge University Press). The answer, to spoil it, is no.

[2] As an aside, I recommend giving Scalia’s dissent a read—it is so childish that it is amusing, if leaving one feeling a little dirty after.

[3] Other than say “Scalia is an evil jerk, to hell with him.” Which is fair.


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