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| | | | | American Constitutional Law, Volume One
Gregg Ivers, American University
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Case Problems
Chapter Three: Judicial Power
What are the Limits on the Supreme Court’s Authority?
Factual Background
On September 21, 1996, President Bill Clinton signed into law the Defense of Marriage Act (DOMA). The law was designed to accomplish two goals. The first was to prevent states from being forced by the Full Faith and Credit Clause to recognize same-sex marriages validly recognized in other states. The second was to define marriage under federal law as the union of one man and one woman. DOMA was the first congressional effort to regulate the terms and conditions of marriage. Up until then, marital law had solely been a state matter.
The impetus for DOMA’s passage was a 1993 decision by the Hawaii Supreme Court striking down the state’s ban on same-sex marriages. In that case, Baehr v. Lewin, a plurality on the Hawaii court concluded that the state’s refusal to recognize same-sex marriages involved sex discrimination and could only be justified if the state offered a compelling state interest to justify the ban. The court ordered a state trial court to rehear the case and this time decided whether Hawaii had a compelling state interest in prohibiting same sex marriage. Ultimately, Hawaiian voters passed an amendment to the state constitution prohibiting same sex marriage. In the interim, many opponents of same-sex marriage feared that gay couples would be able to marry in Hawaii, move to another state, and then claim the Full Faith and Credit Clause of the Constitution, which requires every state to respect the laws and judicial proceedings of the other states. For example, if you obtain your driver’s license in State A and then move to State B, State B has to recognize you as a licensed driver even though its driving age might be higher. Nonetheless, you are still required to obey the traffic and parking laws of State B. Congress quickly moved to head off any potential use of the Full Faith and Credit Clause as a means to defend gay marriage by enacting DOMA. No state since the enactment of DOMA has passed a law permitting same-sex marriage, leaving the status of marital law exactly where it was before Congress acted.
The Problem
In February 1999, the Gay and Lesbian Family Project (GLFP) filed suit on behalf of Michael Rosenzweig and Ethan Palermo, a same-sex couple residing in the state of Mesotolian, claiming that DOMA was unconstitutional under the Due Process Clause of the Fifth Amendment. In Palermo v. United States, GLFP argued that DOMA, by defining marriage exclusively as heterosexual, violated their right to equal protection and due process under the law. GLFP cited the Supreme Court’s 1967 decision in Loving v. Virginia, which struck down a Virginia law prohibiting interracial marriage as unconstitutional under the Due Process Clause of the Fourteenth Amendment, as the basis for its argument. GLFP argued that the principle in Loving and now in DOMA were the same – the government offered no compelling interest to justify regulating a consensual private relationship that was authorized among the general population. Although the Fifth Amendment contains no equal protection clause, the Court has long recognized that the federal government is forbidden from engaging in official acts of discrimination.
GLFP also pointed out that the Mesotolian legislature passed a law in June 1998 permitting same-sex couples to marry legally. A federal district court enjoined the law after the Coalition for Traditional Values (CTV) filed suit claiming that DOMA barred any such efforts by the states. Mesotolian complied with the Court’s decision, but left the language of the state law intact should the United States Supreme Court ever declare DOMA unconstitutional.
In September 1999, a federal district judge upheld DOMA, ruling that the Court had not ruled that laws classifying on the basis of sexual orientation violated the Equal Protection and Due Process guarantees of the Fourteenth Amendment. The court also ruled that Congress had not exceeded its power under the Full Faith and Credit Clause when it prohibited states from recognizing a same sex marriage legal in another state. GLFP argued that the Full Faith and Credit Clause barred Congress from enacting a law that discriminated against a disfavored group, something the Full Faith and Credit Clause was designed to prohibit. DOMA, argued GLFP, was not a law having general application, which is what the Full Faith and Credit Clause required.
In October 2001, the New Circuit Court of Appeals, 2-1, reversed. The appeals court ruled that DOMA violated the Fifth Amendment’s guarantee to due process and equal protection under law. Writing for the court, Judge Scott Alan Gilmore held that, "It is plain from the language of DOMA that the only purpose of the law was to ban same-sex marriage. Such an overt act of discrimination violates the Fifth Amendment’s guarantee of equality and personal privacy (citations omitted)." Commenting on Congress’s entrance into the realm of marital law, Judge Gilmore commented, "Until the passage of DOMA, the states had always been responsible for marital law. Until DOMA, no federal law barred the right of states to recognize marriages (and divorces) obtained in other states. Although the constitutional question is not before us, and since the law fails on Fifth Amendment grounds, we do not reach the issues raised by several amici that DOMA is an unconstitutional intrusion on power reserved to the states under the Tenth Amendment."
CTV sought review in the Supreme Court. In addition to the constitutional arguments it had made in the lower courts, CTV argued that the New Circuit had vastly exceeded its appropriate power of judicial review. But as CTV prepared its appeal, Congress enacted the Preservation of Popular Will Act (PPWA). Passed by a margin of 356-79 in the House and 61-39 in the Senate, the PPWA removed the jurisdiction of the federal courts to hear any case involving the legality of a marriage between a man and a woman. President Wallace Tresan, who campaigned against the right of same-sex couples to marry during the 2000 presidential campaign, signed the law on February 22, 2001. The PPWA’s passage meant that Mesotolian was free to pass a law recognizing same-sex marriage, but should a state court declare the law unconstitutional the federal courts offered no relief to litigants. PPWA included an original jurisdiction provision allowing parties to challenge the constitutionality of the law in the Supreme Court.
GLFP petitioned the Court to hear the case, claiming that the PPWA was unconstitutional because it limited the power of the federal courts to exercise judicial review on a constitutional question. GLFP argued that Congress was seeking a back-door means to circumvent its ruling in Palermo v. United States. GLFP also argued that decisions such as Cooper v. Aaron (1958), City of Boerne v. Flores (1997) and Dickinson v. United States (2000) made clear that the federal courts had the final word of the constitutionality of laws. By removing its power to hear constitutional claims, Congress had exceeded its authority and usurped the judicial function.
The Tresan Administration defended PPWA, claiming that the law was a valid exercise of congressional power to regulate the jurisdiction of the federal courts. The Exceptions and Regulations Clause, argued the Tresan Administration, gave Congress complete power to establish the jurisdiction of the federal courts. The courts had no power to strike down laws that simply followed the command of the Constitution, as the PPWA did.
Questions
- Does the Supreme Court have jurisdiction to decide this case?
- Is PPWA unconstitutional? Why or why not?
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