Minimizing the crimes of women (in a serious case about federalism).

Here's how WaPo's Robert Barnes begins his report about a case of attempted murder:

A melodramatic love triangle begat a ham-handed revenge poisoning. That led to what one Supreme Court justice called an “unimaginable” federal prosecution of the scorned wife under a law enacted to implement a global chemical weapons treaty.

As long as the victim didn't actually die, it's just some kind of joke?

Now, there is a problem with the feds taking over this prosecution, and that should be the focus of the story about this case. But you should see how outrageous it is to diminish the criminal behavior in this gendered fashion.

Carol Anne Bond, a Pennsylvania microbiologist... ordered a rare blend of chemicals, partly off the Internet, and over the next several months tried to poison [Myrlinda] Haynes 24 times by putting them on her doorknob, car and, critically, mailbox.

Just some nutty lady's bumbling parry in a cat fight?

Federal prosecutors charged Bond with violating the 1998 Chemical Weapons Convention Implementation Act, a law based on the chemical weapons ban treaty that is signed by all but four of the world’s nations.

The problem here is not the unseriousness of attempted murder. It's that murder is traditionally left to the states, and the federal government is — at least theoretically — a government of limited, enumerated powers. With this important constitutional principle at stake, Bond is represented by the great ex-Solicitor General Paul Clement:

Clement...  said that if the law implementing the treaty “really does reach every malicious use of chemicals anywhere in the nation, as the government insists,” then it violates the “bedrock principle of our federalist system that Congress lacks a general police power to criminalize conduct” that does not have distinctly federal concern....

[Justice Elena Kagan] said the treaty gave Congress the power to pass implementing legislation. “So you have to find a constraint on the treaty power. Where does it come from?” she demanded.

Justice Sonia Sotomayor worried about the courts hamstringing efforts to deal with terrorism. 

Writing tip for Barnes: If you've already got "ham-handed," don't use "hamstringing." Too much ham.

“It would be deeply ironic that we have expended so much energy criticizing Syria, when if this court were now to declare that our joining or creating legislation to implement the treaty was unconstitutional,” she said.

Now, we're getting to the real meat of it. The government was represented by the current Solicitor General, Donald B. Verrilli Jr.

Chief Justice John G. Roberts Jr., who posed no questions to Clement, asked Verrilli if it would be possible for the president to join a treaty that gives national governments all powers and for Congress then to put in place such legislation.

When Verrilli said that would be unimaginable, Justice Anthony M. Kennedy shot back: “It also seems unimaginable that you would bring this prosecution.”

That led the conservative justices — plus Justice Stephen G. Breyer, who usually sides with the liberals — to unleash a barrage of hypotheticals of what could be prosecuted under the broad law, which covers chemicals that could harm humans or animals: a wheelbarrow full of kerosene; a poisoned potato given to a horse; the performance-enhancing drugs allegedly used by cyclist Lance Armstrong.

“Would it shock you if I told you that a few days ago my wife and I distributed toxic chemicals to a great number of children?” Alito asked Verrilli, drawing laughter from the court’s spectators. He explained that chocolate Halloween candy is “poison to dogs, so it’s a toxic chemical” under the act.

Verrilli chafed, saying, “This is serious business.”

Yes, it truly is. It's easy to see Kennedy's point: The federal government shouldn't have chosen to prosecute this case. But it did, and now what? It's easy to think: The central government needs ample power to do everything that might need to be done at a national level and it should refrain from using that power to deal with matters that are better left to the states.

But it doesn't refrain.

"Congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality."

Justice Kagan quotes from the House of Representatives legislative history of the 1996 Defense of Marriage Act at today's oral argument. (Audio and transcript here. The quote in the title corrects a slightly garbled transcript.) There's a murmur of laughter. Here, listen. This clip includes the response from the very well-prepared Paul Clement, who's defending the federal statute.


By the way, the quote in the post title appeared in the amicus brief filed by 172 Members of the U.S. House of Representatives and 40 U.S. Senators. Here's the context, showing something of the case law that makes this a powerful argument (to anyone who accepts the precedents and is willing to consider the legislative history):

DOMA is... unlike most other Acts of Congress in another critical respect: A clearly stated purpose for its enactment was to express moral disapproval of a disfavored minority group. Many proponents repeatedly stated their intent to "honor a collective moral judgment" reflecting "moral disapproval  of homosexuality" (House Report at 15-16). Chairman Hyde explained, for example, that "most people do not approve of homosexual conduct * * * and they express their disapprobation through the law." 142 Cong. Rec. H7501 (July 12, 1996). Lead Senate sponsor Don Nickles likewise stated that "we find ourselves at the point today that this legislation is needed" because of the "erosion of values." 142 Cong. Rec. S4870 (May 8, 1996).

Those views no doubt reflect "profound and deep convictions," reflecting the "ethical and moral principles" of those who hold them. [Citation to Lawrence v. Texas]. But this Court has made clear that such "considerations do not answer the question before us." Ibid. No matter how sincerely held, such beliefs are not a constitutionally valid basis for enacting "a classification of persons undertaken for its own sake" and "den[ying] them protection across the board." [Citation to Romer v. Evans].

Justice Ginsburg's idea of "two kinds of marriage; the full marriage, and then this sort of skim milk marriage."

Here's the audio and transcript for today's oral argument in United States v. Windsor, challenging part of the federal Defense of Marriage Act. I've listened to the whole 2-hour argument and I'm going to pull out a few things in separate posts. The first hour is about whether there is standing — a technical but extremely interesting and difficult issue.

At the beginning of the second hour, Paul Clement is defending DOMA. He states his point clearly: Congress has power to define marriage for the purpose of all the many federal programs that have long relied on a marriage classification, and even though it has long treated couples as married when they are married according to state law, it had the "flexibility" to exclude same-sex marriages when some states switched from the traditional definition of marriage. The states still control the definition of marriage, in this view, and all Congress did was define the scope of the coverage of the federal programs.

The first Justice to break in is Ruth Bader Ginsburg, who seems prepared with her own succinct argument:

Mr. Clement, the problem is if we are totally for it would totally thwart the States' decision that there is a marriage between two people, for the Federal Government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can't get leave... one might well ask, what kind of marriage is this?

(The strikeout shows where I corrected the transcript, based on the audio.)

Ginsburg returns to this idea later in the argument, after Clement asserts that the states don't "los[e] any benefits" — they are merely blocked from "open[ing] up an additional class of beneficiaries."

JUSTICE GINSBURG: They're not -- they're not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it's pervasive. It's not as though, well, there's this little Federal sphere and it's only a tax question. It's -- it's -- as Justice Kennedy said, 1100 statutes, and it affects every area of life. And so he was you would really [be] diminishing what the State has said is marriage. You're saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.

It's an interesting puzzle. What is a marriage? Is it the bundle of benefits you receive? Marriage is seen as something left to the states in American federalism, but to say that is to ignore the immensity of what the federal government does, much of it hinging on this marriage classification that refers to state law. You really do have much less of a marriage if you don't get all those federal things, but these federal programs all rest on an enumerated power — taxing, spending, etc. — and why wouldn't the feds, in designing any given program have, within that power, the power to delineate who qualifies?

I'm only talking about whether Congress has an enumerated power, not whether this exercise of that power violates the equal protection right, which is also part of this case. And obviously, I'm not talking about the things government does not even attempt to do with marriage — which is to determine whose love relationships are "full" in an emotional and spiritual way.

Today in the Supreme Court: the Defense of Marriage Act.

Adam Liptak explains the statute and the arguments against it.

This law was passed in 1996 — almost 20 years ago. Why has it taken so long to get to an answer about its constitutionality? I did a final exam in my Constitutional Law class based on DOMA in, approximately, 1996.

One thing about the current case: It has a crisply defined embodiment of the asserted constitutional right — an 83-year old woman (Edith Windsor) whose spouse died and left her property that would be tax free if the IRS recognized her marriage and who is stuck instead with a $360,000 tax bill.

Her opponent is "United States," a formidable party, usually, but in this case, bizarrely vague:

[I]n February [2011], Attorney General Eric H. Holder Jr. announced that he and President Obama had concluded that [DOMA] was unconstitutional and unworthy of defense in court. Mr. Holder added that the administration would continue to enforce the law.

That's unpleasant. They're lying back waiting for the Court to do the difficult work.

[The administration] agrees with Ms. Windsor that the law is unconstitutional, but will not pay her the tax refund she seeks. House Republicans, represented by Paul D. Clement, a former United States solicitor general, intervened in the case to defend the law, losing in the lower courts.

Even though the administration’s legal position prevailed in the lower courts, it filed an appeal to the Supreme Court, saying the matter should be decided by the nation’s highest tribunal.

The Supreme Court appointed Vicki C. Jackson, a law professor at Harvard, to argue a position not fully supported by any party: that the case’s odd procedural posture means the court lacks jurisdiction to decide it. The court scheduled a separate 50-minute argument on that question.

Does anyone want that argument to succeed? But I await Professor Jackson's arguments. It might be that the Court shouldn't rescue the administration from its politically uncomfortable position. But I feel sorry for the Edith Windsors whose cases are not governed by the 2d Circuit opinion.

The issue of standing in the Supreme Court's same-sex marriage cases.

Linda Greenhouse explains the 2 standing problems in a way that is accessible to the general reader.

The Windsor case is especially striking, because the plaintiff's stake in the case is knock-you-over-the-head clear and tangible:

Ms. Windsor owes more than $300,000 in federal estate tax on the property left to her by the woman to whom she was legally married in the eyes of New York State. Had she been married to a man, she would have inherited the property tax-free. With DOMA barring the federal government from recognizing same-sex marriage, and the Obama administration taking the position that it will enforce the law until the Supreme Court or Congress tell it otherwise, there certainly seems to be a controversy between the parties sufficient to meet the test of Article III jurisdiction.

But the Obama administration declines to defend the constitutionality of DOMA, and Windsor won in the lower courts, making things nonadversarial, and the federal courts can only resolve actual controversies between the parties. But it's not as if DOMA has gone away. It still affects people, and Congress isn't about to repeal it.

Democrats in Congress wanted no part of defending DOMA, even though the statute had passed both houses in 1996 by big bipartisan majorities and was signed into law by President Bill Clinton. So a five-member House leadership body called the Bipartisan Legal Advisory Group decided, over the objections of its two Democratic members, to take over the executive branch’s abandoned defense of DOMA....

The question in the case is whether this Bipartisan Legal Advisory Group can take over defending the law and thereby preserve the adversarial quality of the case. Obviously, it will be litigated with intensity and excellence. The Group has Paul Clement as its lawyer. But that's not the point in standing doctrine.