Supreme Court and Gay Marriage – United States v. Windsor – DOMA

Supreme Court and Gay Marriage

United States v. Windsor - United States Supreme Court - DOMA

Supreme Court and Gay Marriage – United States v. Windsor – DOMA

Two things have been very much in the news lately – the United States Supreme Court and Gay Marriage. Yesterday, the United States Supreme Court issued another head scratching decision (from a legal perspective) (United States v. Windsor, 2013) in striking down Section 3 of the Federal Defense of Marriage Act (“DOMA”) that defines marriage as solely between a man and a woman.

For a moment, set aside whether you think gay marriage is good or bad policy at the state or federal level. This post does not weigh the merits of gay marriage (pro or con). Instead, as with the rest of this website, this post considers the Court’s legal reasoning.

Legal Reasoning – United States v. Windsor

Fifth Amendment and Equal Protection

Under the Supreme Court’s result-driven logic, the 5-4 majority said DOMA violates the liberty provision from the Due Process Clause of the Fifth Amendment (“nor shall any person… be deprived of… liberty… without due process of law”). The Court also says Equal Protection principles [Fourteenth Amendment] apply to the Fifth Amendment’s Due Process Clause.

In the words of the majority, “DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. See Bolling, 347 U.S., at 499-500; Adarand Constructors, Inc. v Pena, 515 U.S. 200, 217-218 (1995). While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.”

Enumerated Powers Argument Would Be Legitimate

The Court’s legal reasoning is, of course, complete nonsense. The Supreme Court could have had a valid argument that defining marriage at the federal level exceeds Congress’s delegated, enumerated powers. This would be correct, but almost all of those 1,000 other federal laws and regulations impacted by DOMA are not pursuant to Congress’s enumerated powers either. For political and ideological reasons, the Court doesn’t want to go there.


Instead, the Court relied on dubious precedent (from a legal standpoint) from the time of the Warren Court. In Bolling v. Sharpe, 1954, Earl Warren and his fellow judicial legislators struck down school segregation in Washington D.C. [Yes – school segregation is terrible policy, but it was Congress’s responsibility to eliminate segregation in D.C., not the court’s.]. In doing so, Earl Warren had to redefine the meaning of the Equal Protection Clause, invert it to apply against the federal government, then copy and paste it into the Fifth Amendment with invisible ink.

Actual Meaning of Fifth Amendment and Fourteenth Amendment

The Warren Court’s decision in Bolling, along with the Supreme Court’s decision in United States v. Windsor, is complete nonsense from a legal standpoint. Here’s a quick refresher as to why.

Fifth Amendment

Recall the Fifth Amendment, along with the rest of the Bill of Rights, was a superfluous restraint on federal power. The Bill of Rights was designed to reinforce the Enumerated Powers structure. The Due Process Clause of the Fifth Amendment was merely a procedural guarantee that individuals had a right to judicial procedure before they could be deprived of their life, liberty or property by the federal government.

The Fourteenth Amendment

The Fourteenth Amendment, which only applies against the state governments, was intended to grant blacks and recently emancipated slaves certain “fundamental rights.” These fundamental rights were those rights generally encompassed by the Privileges and Immunities Clause of Article 4, Section 2, and those rights enumerated in Section 1 of the Civil Rights Act of 1866. The Equal Protection Clause merely required that state laws had to treat whites and blacks the same with respect to these limited, fundamental rights.

It was common knowledge and well understood by members of the thirty-ninth Congress that passed the Fourteenth Amendment that the scope of the Fourteenth Amendment and Equal Protection was so limited that it did not confer any social or political rights (like voting rights) upon blacks. School segregation in the states and state laws prohibiting blacks from voting were understood to be perfectly constitutional under the Fourteenth Amendment.


This analysis is in no way an endorsement of racial segregation or sex-based discrimination of any kind. The point is that the sweeping powers wielded by the Supreme Court since the early twentieth century were usurped. The Court has aggrandized its own power through its decisions and an intellectually dishonest, open-ended reading of the Fourteenth Amendment.

Think about it – how can the Fifth Amendment, ratified in 1791 as a superfluous restraint on federal power, which guaranteed judicial process before an individual could be deprived of their life, liberty or property by a federal law, be construed to constitutionally protect gay-marriage? It would be fair to ask the same question of heterosexual marriage if roles were reversed. Then ask how the Fourteenth Amendment, designed to protect certain fundamental rights for blacks and recently emancipated slaves, could be used to constitutionally protect gay-marriage? The Fourteenth Amendment didn’t even grant blacks the right to vote or prevent racial segregation in government schools. It would have been nice if the thirty-ninth Congress had provided greater protection to blacks at that time, but they did not.

End Result of United States v. Windsor

It’s a positive result that Edith Windsor will receive a federal estate tax refund of $363,053. Any return of monies confiscated by government is a good thing. Windsor had been previously denied the ability to claim the “spousal” exemption from federal estate taxes that’s afforded to heterosexual couples.

Government Should Not Be Involved in Marriage

If the United States were truly a land of freedom, neither the federal nor state governments would be in the marriage business at all (this is a policy opinion, not legal opinion). That said, if government is to intrude upon what was once a private religious institution, the constitution reserves these matters to the states to decide (which the majority opinion discussed in detail despite having no relevance to its legal reasoning). Whether gay marriage should be legal or illegal is and should be decided by the people of each state.

Conclusion – United States v. Windsor

Americans would be better served if the United States Supreme Court (along with Congress and the President) quit the charade that their actions and decisions have anything to do with the Constitution. If Americans want a constitutional form of government, they should condemn the court’s decision and seek change through the appropriate legislature. If Americans are happy with the court’s decision, they should simply get rid of the constitution, abolish the state governments, and admit they prefer being arbitrarily ruled by a small group of politically connected Ivy League lawyers in Washington D.C. At least that would be honest.

Fourth Amendment – NSA – Spying on American Citizens’ Emails, Phone Calls, Etc… PRISM

The Federal government’s spying program, courtesy of the National Security Agency (NSA) is clearly unconstitutional, but media and other commentators incorrectly focus attention on the Fourth Amendment. The Fourth Amendment is merely a fail safe. Attention should instead be focused on Article 1, Section 8 and the Enumerated Powers of Congress. Where was Congress authorized to spy on American citizens and to collect their personal (digital) information? Which Enumerated Power authorizes these federal activities?