167 Vocabulary words from the Supreme Court's DOMA Decision

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.

Still, naming an heir can head off family conflicts, and help executors find and distribute points.
Reuters (Mar 1, 2013)

While the suit was pending, the Attorney General notified the Speaker of the House of Representatives that the Department of Justice would no longer defend §3’s constitutionality.

Guernsey's health minister, Hunter Adam, instructed officials to start drawing up legislation to comply with European standards more than a year ago.
The Guardian (Jun 28, 2012)

The decision of the Executive not to defend the constitutionality of §3 in court while continuing to deny refunds and to assess deficiencies does introduce a complication.

Given the Government’s concession,...once the District Court ordered the refund, the case should have ended and the appeal been dismissed.

considerations [that] may outweigh the concerns underlying the usual reluctance to exert judicial power.

...prepared to defend with vigor the legislative act’s constitutionality.

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

Wire things up yourself, using chips or relays or discrete components.
Forbes (Jul 8, 2013)

DOMA rejects this long-established precept.

By doing so it violates basic due process and equal protection principles applicable to the Federal Government.

DOMA’s ...purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority

This state law’s principal effect is to identify a subset of state-sanctioned marriages constitutionally protected sexual relationships, (see Lawrence,)and make them unequal.

It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State.

It is a nullity, and no writ of error will lie upon it.

Windsor paid the taxes but filed suit to challenge
the constitutionality of this provision.

Windsor commenced this refund suit in the United States District Court for the Southern District of New York.

But in a footnote to that statement, the Court acknowledged Article III’s separate requirement of a “justiciable case or controversy,” and stated that this requirement was satisfied “because of the presence of the two Houses of Congress as adverse parties.”

The stated rationale for this dual-track procedure (determination of unconstitutionality coupled with ongoing enforcement) was to “recogniz[e] the judiciary as the final arbiter of the constitutional claims raised.”

The stated rationale for this dual-track procedure (determination of unconstitutionality coupled with ongoing enforcement) was to “recogniz[e] the judiciary as the final arbiter of the constitutional claims raised.”

Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’”

The requirements of Article III standing are familiar: “First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural or hypothetical.”’

The requirements of Article III standing are familiar: “First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural or hypothetical.”’

The judgment orders the United States to pay money that it would not disburse but for the court’s order.

It is true that “[a] party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it.”

The holdings of cases are instructive, and the words of Chadha make clear its holding that the refusal of the Executive to provide the relief sought suffices to preserve a justiciable dispute as required by Article III.

Among the over 1,000 statutes and numerous federal regulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans’ benefits.

I...concerns about sanctioning the adjudication of [this case]in the absence of any participant supporting the validity of [the statute].

IWere this Court to hold that prudential rules require it to dismiss the case, and, in consequence, that the Court of Appeals erred infailing to dismiss it as well, extensive litigation would ensue.

We should vacate the decision below and remand to the Court of Appeals for the Second Circuit, with instructions todismiss the appeal.

Rights and privileges of hundreds of thousands of persons would be adversely affected, pending a case in which all prudential concerns about justiciability are absent.

On the one hand, as noted, the Government’s agreement with Windsor raises questions about the propriety of entertaining a suit in which it seeks affirmance of an order invalidating a federal law and ordering the United States to pay money.

This would undermine the clear dictate of the separation-of-powers principle that “when an Act of Congress is alleged to conflict with the Constitution, ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’”

Quite to the contrary, the United States argues emphatically in favor of the correctness of that judgment.

Similarly, with respect to the legislative power, when Congress has passed a statute and a President has signed it, it poses grave challenges to the separation of powers for the Executive at a particular moment tobe able to nullify Congress’ enactment solely on its owninitiative and without any determination from the Court.

We reasoned that the senators’ votes—which would otherwise have carried the day—were nullified by that action.

It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.

At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.

And in establishing income-based criteria for Social Security benefits, Congress decided that although state law would determine in general who qualifies as an applicant’s spouse, common-law marriages also should be recognized, regardless of any particular State’s view on these relationships.

They will be considered by the European Commission on 24 July, but could take years to implement.
BBC (Jul 17, 2013)

Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)?

The majority extensively chronicles DOMA’s departurefrom the normal allocation of responsibility between State

Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state law policy decisions with respect to domestic relations.

In order to respect this principle, the federal courts, as a general rule, do not adjudicate issues of marital status even when there might otherwise be a basis for federal jurisdiction.

Marriage within any degree of consanguinity is forbidden.

In determining whether a law is motived by an improper animus or purpose, “‘[d]iscriminations of an un- usual character’” especially require careful consideration.

The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, (see Lawrence, 539 U. S. 558,) and whose relationship the State has sought to dignify.

Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways.

By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound.

DOMA divests married same-sex couples of the duties and responsibilities that are an essential part of married life and that they in most cases would be honored to accept were DOMA not in force.

" [The] Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does.”

But the majority says that the supporters of this Act acted with malice—with the “purpose” ...“to disparage and to injure” same-sex couples.

My point, admittedly, is banal: that Australia is confounding and complex.
BBC (Jun 28, 2013)

But the majority says that the supporters of this Act acted with malice—with the “purpose” ... “to disparage and to injure” same-sex couples.

At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and thatit furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.

The majority goes out of its way to make this explicit in the penultimate sentence of its opinion.

So too will the concerns for state diversity and sovereignty that weigh against DOMA’s constitutionality in this case.

Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former.

It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every- where “primary” in its role.

European governments still believe that defense policy and defense spending are intrinsic elements of national sovereignty.
New York Times (Jan 7, 2013)

We can do so only when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party.

The judicial power as Americans have understood it (and their English ancestors before them) is the power to adjudicate, with conclusive effect, disputed government claims (civil or criminal) against private persons, and disputed claims by private persons against the government or other private persons.

In other words, declaring the compatibility of state or federal laws with the Constitution is not only not the “primary role” of this Court...

SCALIA, J., dissenting
....could spend many fruitless afternoons ransacking our library for any other petitioner’s brief seeking an affirmance of the judgment against it.1 What the petitioner United States asks us to do in the case before us is exactly what the respondent Windsor asks us to do: not to providerelief from the judgment below but to say that that judgment was correct.

What the views urged in this dissent produce is not insulation from judicial review but insulation from Executive contrivance.

In the more than two centuries that this Court has existed as an institution, we have never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question’s answer.

For an even more advanced scavenger hunt, one might search the annals of Anglo-American law for another “Motion to Dismiss” like theone the United States filed in District Court: It argued that the court should agree “with Plaintiff and the United States” and “not dismiss” the complaint.

There the Justice Department’s refusal to defend the legislation was in accord with its longstanding (and entirely reasonable) practice of declining to defend legislation that in its view infringes upon Presidential powers.

The majority opinion makes a point of scolding the President for his “failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions,”

But the rebuke is tongue in-cheek, for the majority gladly gives the President what he wants.

During the intervening two hours, the protesters have gone, the riot police have vanished.
The Guardian (Jun 13, 2013)

The majority’s discussion of the requirements of Article III bears no resemblance to our jurisprudence.

I find it wryly amusing that the majority seeks to dismiss the requirement of party-adverseness as nothingmore than a “prudential” aspect of the sole Article IIIrequirement of standing.

(Relegating a jurisdictional requirement to “prudential” status is a wondrous device,enabling courts to ignore the requirement whenever theybelieve it “prudent”—which is to say, a good idea.)

The authorities the majority cites fall miles short of supporting the counterintuitive notion that an Article III “controversy” can exist without disagreement between the parties.

The officers sought to appeal the holding of Fourth Amendment violation, which would circumscribe their future conduct; the plaintiff continued to insist that a Fourth Amendment violation had occurred.

Where the Executive is forcing an unconstitutional law, suit will of course lie; but if, in that suit, the Executive admits the unconstitutionality of the law, the litigation should end in an order or a consent decree enjoining enforcement.

...in which event Windsor would not have been injured, the District Court could not have refereed this friendly scrimmage, and the Executive’s determination of unconstitutionality would have escaped this Court’s desire to blurt out its view of the law.

...in which event Windsor would not havebeen injured, the District Court could not have refereed this friendly scrimmage, and the Executive’s determination of unconstitutionality would have escaped this Court’s desire to blurt out its view of the law.

The matter would have been left, as so many matters ought to be left, to a tug of war between the President and the Congress, which has innumerable means (up to and including impeachment) of compelling the President to enforce the laws it has written.

The matter would have been left, as so many matters ought to be left, to atug of war between the President and the Congress, whichhas innumerable means (up to and including impeachment) of compelling the President to enforce the laws ithas written.

So, for example, those classifications subject to strict scrutiny—i.e., classifications that must be “narrowly tailored” to achieve a “compelling” government interest.

Or the President could have evaded presentation of the constitutional issue to this Court simply by declining to appeal the District Court and Court of Appeals dispositions he agreed with.

Or the President could have evaded presentation of the constitutional issue to this Court simply by declining to appeal the District Court and Court of Appeals dispositions he agreed with.

Be sure of this much: If a President wants to insulate his judgment of unconstitutionality from our review, he can.

Raising his arms over his head, assuming poses, brandishing the putting iron like a sword.
The New Yorker (Jun 3, 2013)

The very next sentence of Chief Justice Marshall’s opinion makes the crucial qualification that today’s majority ignores: “Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”

The whole proceeding was in contempt of the court, and highly reprehensible .

The whole proceeding was in contempt of the court, and highly reprehensible .

A judgment in form, thus procured, in the eye of the law is no judgment of the court.

He had a horrendous first half, he was impetuous, tried to win the war right away, diving in at players.
The Guardian (Feb 15, 2013)

The flying insults were thoroughly entertaining, and all in an emotional vortex.
New York Times (Dec 24, 2011)

He orders an “Old Spanish,” a mixed drink that heretofore existed only in the 30 Rock universe.
Time (Apr 23, 2013)

JUSTICE ALITO would create a system in which Congress can hale the Executive before the courts not only to vindicate its own institutional powers to act, but to correct a perceived inadequacy in the execution of its laws.3 This would lay to rest Tocqueville’s praise of our judicial system as one which “intimately bind[s] the case made for the law with the case made for one man,” one in which legislation is “no longer exposed to the daily aggression of the parties,” and in which “[t]he political

JUSTICE ALITO would create a system in which Congress can hale the Executive before the courts not only to vindicate its own institutional powers to act, but to correct a perceived inadequacy in the execution of its laws

Or when the President simply declines to enforce it without opining on its constitutionality?

If it is the inoperativeness that constitutes the injury—the “impairment of [the legislative] function,” as JUSTICE ALITO puts it, (post, at 4—)it should make no difference which of the other two branches inflicts it, and whether the Constitution is the pretext.

JUSTICE ALITO’s notion of standing will likewise enormously shrink the area to which “judicial censure, exercised by the courts on legislation, cannot extend,” ibid.

For example, a bare majority of both Houses could bring into court the assertion that the Executive’s implementation of welfare programs is too generous—a failure that no other litigant would have standing to complain about.

...if Congress can sue the Executive for the erroneous application of the law that “injures” its power to legislate, surely the Executive can sue Congress for its erroneous adoption of an unconstitutional law that “injures” the Executive’s power to administer—or perhaps for its protracted failure to act on one of his nominations.

... if Congress can sue the Executive for the erroneous application of the law that “injures” its power tolegislate, surely the Executive can sue Congress for its erroneous adoption of an unconstitutional law that “injures” the Executive’s power to administer—or perhaps for its protracted failure to act on one of his nominations.

, if Congress can sue the Executive for the erroneous application of the law that “injures” its power tolegislate, surely the Executive can sue Congress for its erroneous adoption of an unconstitutional law that “injures” the Executive’s power to administer—or perhaps for its protracted failure to act on one of his nominations.

To be sure, if Congress cannot invoke our authority in the way that JUSTICE ALITO proposes, then its only recourse is to confront the President directly.

To be sure, if Congress cannot invoke our authority in the way that JUSTICE ALITO proposes, then its only recourse is to confront the President directly.

If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing to confirm Presidential appointees to the elimination of funding.

But no one questions the power of the States to define marriage (with the concomitant conferral of dignity and status), so what is the point of devoting seven pages to describing how long and well established that power is?

Even after the opinion has formally disclaimed reliance upon principles of federalism,mentions of “the usual tradition of recognizing and accepting state definitions of marriage” continue.

The opinion never explains. My guess is that the majority, while reluctant to suggest that defining the meaning of “marriage” in federal statutes is unsupported by any of the Federal Government’s enumerated powers, nonetheless needs some rhetorical basis to support its pretense ...

But any pretense to being a world-class outfit was hard to justify in such surroundings.
New York Times (Jun 22, 2013)

[the] central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality.

In accord with my previously expressed skepticism about the Court’s “tiers of scrutiny”approach, I would review this classification only for its rationality.

So would the further suggestion (also necessary, under our substantive-due-process precedents) that a world in which DOMA exists is one bereft of “‘ordered liberty.’”

The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-dueprocess grounds, and perhaps with some amorphous federalism component playing a role) because it is motivatedby a “‘bare . . . desire to harm’” couples in same-sex marriages.

It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.

After the coup, President Obama expressed “deep concern,” steering clear of any explicit condemnation.
New York Times (Jul 4, 2013)

Politicians with high salaries giving jobs and flights to relatives are widely scorned.
BBC (Jun 19, 2013)

Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute.

It makes only a passing mention of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them.

Congress has hardly demonstrated itself unwilling to make such further, revising judgments upon due deliberation.

But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions.

In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that “personhood and dignity” in the first place.

There have been plebiscites, legislation, persuasion, and loud voices—in other words, democracy.

Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many.

Respondent Edith Windsor, supported by the United States, asks this Court to intervene in that debate, and although she couches her argument in different terms, what she seeks is a holding that enshrines in the Constitution a particular understanding of marriage under which the sex of the partners makes no difference.

With the deals seemingly contingent on each other, they would violate the league’s collective bargaining agreement, which bans transactions involving players and coaches.

Indeed, because legislating is Congress’ central function, any impairment of that function is a more grievous injury than the impairment of a procedural add-on.

The results were bolstered by strong gains in trading revenue.
New York Times (Jul 15, 2013)

“Here, the plaintiffs include twenty senators, whose votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification.

"By strikingdown §3 of DOMA as unconstitutional, the Second Circuit effectively “held for naught” an Act of Congress."

Under a legal deal signed between London and Amman last April, the treaty will be ratified by the British government by June 21.

citing cases to the effect that “members of collegial bodies do not have standing to perfect an appealthe body itself has declined to take”

...referring to fundamental rights as those that are so “rooted in the traditions and conscience of our people as to be ranked as fundamental"

“‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’”

Faced with such a request, judges have cause for both caution and humility.

Past changes in the understand-ing of marriage—for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage— have had far-reaching consequences.

Past changes in the understand-ing of marriage—for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage— have had far-reaching consequences.

The state court suppressed the evidence, saying there had been no “exigent circumstances” that excused the failure to obtain a warrant.

...sociologists have documented, it sometimes takes decades to document the effects of social changes—like the sharp rise in divorce rates following the advent of no-fault divorce—on children and society.

Others think that recognition of same-sex marriage will fortify a now-shaky institution.

At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be.

Among those holding that position, some deplore and some applaud this predicted development.

They further maintain that the governmental interests that §3 purports to serve are not sufficiently important and that it has not been adequately shown that §3 serves those interests very well.

Underlying our equal protection jurisprudence is the central notion that “[a] classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’”

The modern tiers of scrutiny—on which Windsor and the United States rely so heavily—are a heuristic to help judges determine when classifications have that “fair and substantial relation to the object of the legislation.”

The command, which is based in Tampa, also operates multilingual news Web sites tailored to specific regions.
Washington Post (Jul 7, 2013)

"...laws grounded in such considerations are deemed to reflect prejudice and antipathy.”

In other contexts, however, the Court has found that classifications based on gender are “arbitrary,”( Reed, supra, at 76), and based on “outmoded notions of the relative capabilities of men and women,” (Cleburne, supra, at 441,) as when a State provides that a man must always be preferred to an equally qualified woman when both seek to administer the estate of a deceased party, (see Reed, supra, at 76–77.)

In India today, social activists and the courts are vigorously scrutinizing public servants, which impacts response time.
New York Times (Jun 24, 2013)

They argue that marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.

While modern cultural changes have weakened the link between marriage and procreation in the popular mind, there is no doubt that, throughout human history and across many cultures, marriage has been viewed as an exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship.

While modern cultural changes have weakened the link between marriage and procreation in the popular mind, there is no doubt that, throughout human history and across many cultures, marriage has been viewed as an exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship.

At least as it applies to heterosexual couples, this view of marriage now plays a very prominent role in the popular understanding of the institution.

Indeed, our popular culture is infused with this understanding of marriage.

Proponents of same-sex marriage argue that because gender differentiation is not relevant to this vision, the exclusion of same-sex couples from the institution of marriage is rank discrimination.

Specifically about the controversy stirred up by some academics who have arrogated to themselves spurious authority to discard parts of Hamlet.
Slate (Dec 27, 2012)

Vernon White, Canon Theologian at Westminster Abbey, said Lewis was an "extraordinarily imaginative and rigorous thinker and writer".
BBC (Nov 21, 2012)

Since becoming secretary of state, Mr. Kerry has worked to jump-start the peace process, embracing a seemingly intractable issue.
New York Times (May 23, 2013)

But forming that intuition is best done through a series of rigorous, focused tests.
Forbes (Jul 1, 2013)

Kennedy said the appeals court did not test the Texas plan under the most exacting level of judicial review.
Time (Jun 24, 2013)

In countries where governments have made improving internet access and reliable electricity key priority, the benefits are apparent.
The Guardian (Jul 12, 2013)

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.

And given the size of government and the degree to which it now regulates daily life, it seems unlikely that either Congress or the States could maintain complete neutrality even if they tried assiduously to do so.

The Court reaches this conclusion in part because it believes that §3 encroaches upon the States’ sovereign prerogative to define marriage.

The Court reaches this conclusion in part because it believes that §3 encroaches upon the States’ sovereign prerogative to define marriage.

In these provisions, Congress used marital status as a way of defining this class—in part, I assume, because it viewed marriage as a valua- ble institution to be fostered and in part because it viewedmarried couples as comprising a unique type of economicunit that merits special regulatory treatment.