United States v. Windsor , 133 S. Ct. 2675 ( 2013 )

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
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.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES v. WINDSOR, EXECUTOR OF THE
ESTATE OF SPYER, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 12–307. Argued March 27, 2013—Decided June 26, 2013
The State of New York recognizes the marriage of New York residents
Edith Windsor and Thea Spyer, who wed in Ontario, Canada, in
2007. When Spyer died in 2009, she left her entire estate to Windsor.
Windsor sought to claim the federal estate tax exemption for surviv-
ing spouses, but was barred from doing so by §3 of the federal De-
fense of Marriage Act (DOMA), which amended the Dictionary Act—a
law providing rules of construction for over 1,000 federal laws and
the whole realm of federal regulations—to define “marriage” and
“spouse” as excluding same-sex partners. Windsor paid $363,053 in
estate taxes and sought a refund, which the Internal Revenue Service
denied. Windsor brought this refund suit, contending that DOMA vi-
olates the principles of equal protection incorporated in the Fifth
Amendment. While the suit was pending, the Attorney General noti-
fied the Speaker of the House of Representatives that the Depart-
ment of Justice would no longer defend §3’s constitutionality. In re-
sponse, the Bipartisan Legal Advisory Group (BLAG) of the House of
Representatives voted to intervene in the litigation to defend §3’s
constitutionality. The District Court permitted the intervention. On
the merits, the court ruled against the United States, finding §3 un-
constitutional and ordering the Treasury to refund Windsor’s tax
with interest. The Second Circuit affirmed. The United States has
not complied with the judgment.
Held:
1. This Court has jurisdiction to consider the merits of the case.
This case clearly presented a concrete disagreement between oppos-
ing parties that was suitable for judicial resolution in the District
Court, but the Executive’s decision not to defend §3’s constitutionali-
2 UNITED STATES v. WINDSOR
Syllabus
ty in court while continuing to deny refunds and assess deficiencies
introduces a complication. Given the Government’s concession, ami-
cus contends, once the District Court ordered the refund, the case
should have ended and the appeal been dismissed. But this argu-
ment elides the distinction between Article III’s jurisdictional re-
quirements and the prudential limits on its exercise, which are “es-
sentially matters of judicial self-governance.” Warth v. Seldin, 422
U. S. 490, 500. Here, the United States retains a stake sufficient to
support Article III jurisdiction on appeal and in this Court. The re-
fund it was ordered to pay Windsor is “a real and immediate econom-
ic injury,” Hein v. Freedom From Religion Foundation, Inc., 551 U. S.
587, 599, even if the Executive disagrees with §3 of DOMA. Wind-
sor’s ongoing claim for funds that the United States refuses to pay
thus establishes a controversy sufficient for Article III jurisdiction.
Cf. INS v. Chadha, 462 U. S. 919.
Prudential considerations, however, demand that there be “con-
crete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult consti-
tutional questions.” Baker v. Carr, 369 U. S. 186, 204. Unlike Article
III requirements—which must be satisfied by the parties before judi-
cial consideration is appropriate—prudential factors that counsel
against hearing this case are subject to “countervailing considera-
tions [that] may outweigh the concerns underlying the usual reluc-
tance to exert judicial power.” Warth, supra, at 500–501. One such
consideration is the extent to which adversarial presentation of the
issues is ensured by the participation of amici curiae prepared to de-
fend with vigor the legislative act’s constitutionality. See Chadha,
supra, at 940. Here, BLAG’s substantial adversarial argument for
§3’s constitutionality satisfies prudential concerns that otherwise
might counsel against hearing an appeal from a decision with which
the principal parties agree. This conclusion does not mean that it is
appropriate for the Executive as a routine exercise to challenge stat-
utes in court instead of making the case to Congress for amendment
or repeal. But this case is not routine, and BLAG’s capable defense
ensures that the prudential issues do not cloud the merits question,
which is of immediate importance to the Federal Government and to
hundreds of thousands of persons. Pp. 5–13.
2. DOMA is unconstitutional as a deprivation of the equal liberty of
persons that is protected by the Fifth Amendment. Pp. 13–26.
(a) By history and tradition the definition and regulation of mar-
riage has been treated as being within the authority and realm of the
separate States. Congress has enacted discrete statutes to regulate
the meaning of marriage in order to further federal policy, but
DOMA, with a directive applicable to over 1,000 federal statutes and
Cite as: 570 U. S. ____ (2013) 3
Syllabus
the whole realm of federal regulations, has a far greater reach. Its
operation is also directed to a class of persons that the laws of New
York, and of 11 other States, have sought to protect. Assessing the
validity of that intervention requires discussing the historical and
traditional extent of state power and authority over marriage.
Subject to certain constitutional guarantees, see, e.g., Loving v.
Virginia, 388 U. S. 1, “regulation of domestic relations” is “an area
that has long been regarded as a virtually exclusive province of the
States,” Sosna v. Iowa, 419 U. S. 393, 404. The significance of state
responsibilities for the definition and regulation of marriage dates to
the Nation’s beginning; for “when the Constitution was adopted the
common understanding was that the domestic relations of husband
and wife and parent and child were matters reserved to the States,”
Ohio ex rel. Popovici v. Agler, 280 U. S. 379, 383–384. Marriage laws
may vary from State to State, but they are consistent within each
State.
DOMA rejects this long-established precept. The State’s decision
to give this class of persons the right to marry conferred upon them a
dignity and status of immense import. But the Federal Government
uses the state-defined class for the opposite purpose—to impose re-
strictions and disabilities. The question is whether the resulting in-
jury and indignity is a deprivation of an essential part of the liberty
protected by the Fifth Amendment, since what New York treats as
alike the federal law deems unlike by a law designed to injure the
same class the State seeks to protect. New York’s actions were a
proper exercise of its sovereign authority. They reflect both the
community’s considered perspective on the historical roots of the in-
stitution of marriage and its evolving understanding of the meaning
of equality. Pp. 13–20.
(b) By seeking to injure the very class New York seeks to protect,
DOMA violates basic due process and equal protection principles ap-
plicable to the Federal Government. The Constitution’s guarantee of
equality “must at the very least mean that a bare congressional de-
sire to harm a politically unpopular group cannot” justify disparate
treatment of that group. Department of Agriculture v. Moreno, 413
U. S. 528, 534–535. DOMA cannot survive under these principles.
Its unusual deviation from the tradition of recognizing and accepting
state definitions of marriage operates to deprive same-sex couples of
the benefits and responsibilities that come with federal recognition of
their marriages. This is strong evidence of a law having the purpose
and effect of disapproval of a class recognized and protected by state
law. DOMA’s avowed 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
4 UNITED STATES v. WINDSOR
Syllabus
of the States.
DOMA’s history of enactment and its own text demonstrate that
interference with the equal dignity of same-sex marriages, conferred
by the States in the exercise of their sovereign power, was more than
an incidental effect of the federal statute. It was its essence. BLAG’s
arguments are just as candid about the congressional purpose.
DOMA’s operation in practice confirms this purpose. It frustrates
New York’s objective of eliminating inequality by writing inequality
into the entire United States Code.
DOMA’s principal effect is to identify and make unequal a subset of
state-sanctioned marriages. 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 also forces same-sex couples to live as mar-
ried 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. Pp. 20–26.
699 F. 3d 169, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which GINSBURG,
BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a
dissenting opinion. SCALIA, J., filed a dissenting opinion, in which
THOMAS, J., joined, and in which ROBERTS, C. J., joined as to Part I.
ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined as to
Parts II and III.
Cite as: 570 U. S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–307
_________________
UNITED STATES, PETITIONER v. EDITH SCHLAIN
WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE
ESTATE OF THEA CLARA SPYER, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 26, 2013]
JUSTICE KENNEDY delivered the opinion of the Court.
Two women then resident in New York were married
in a lawful ceremony in Ontario, Canada, in 2007. Edith
Windsor and Thea Spyer returned to their home in New
York City. When Spyer died in 2009, she left her entire
estate to Windsor. Windsor sought to claim the estate tax
exemption for surviving spouses. She was barred from
doing so, however, by a federal law, the Defense of Mar-
riage Act, which excludes a same-sex partner from the
definition of “spouse” as that term is used in federal stat-
utes. Windsor paid the taxes but filed suit to challenge
the constitutionality of this provision. The United States
District Court and the Court of Appeals ruled that this
portion of the statute is unconstitutional and ordered the
United States to pay Windsor a refund. This Court granted
certiorari and now affirms the judgment in Windsor’s
favor.
I
In 1996, as some States were beginning to consider the
concept of same-sex marriage, see, e.g., Baehr v. Lewin, 74
2 UNITED STATES v. WINDSOR
Opinion of the Court
Haw. 530, 852 P. 2d 44 (1993), and before any State had
acted to permit it, Congress enacted the Defense of Mar-
riage Act (DOMA), 110 Stat. 2419. DOMA contains two
operative sections: Section 2, which has not been chal-
lenged here, allows States to refuse to recognize same-sex
marriages performed under the laws of other States. See
28 U. S. C. §1738C.
Section 3 is at issue here. It amends the Dictionary Act
in Title 1, §7, of the United States Code to provide a fed-
eral definition of “marriage” and “spouse.” Section 3 of
DOMA provides as follows:
“In determining the meaning of any Act of Con-
gress, or of any ruling, regulation, or interpretation of
the various administrative bureaus and agencies of the
United States, the word ‘marriage’ means only a
legal union between one man and one woman as hus-
band and wife, and the word ‘spouse’ refers only to a
person of the opposite sex who is a husband or a wife.”
1 U. S. C. §7.
The definitional provision does not by its terms forbid
States from enacting laws permitting same-sex marriages
or civil unions or providing state benefits to residents in
that status. The enactment’s comprehensive definition of
marriage for purposes of all federal statutes and other
regulations or directives covered by its terms, however,
does control over 1,000 federal laws in which marital or
spousal status is addressed as a matter of federal law. See
GAO, D. Shah, Defense of Marriage Act: Update to Prior
Report 1 (GAO–04–353R, 2004).
Edith Windsor and Thea Spyer met in New York City in
1963 and began a long-term relationship. Windsor and
Spyer registered as domestic partners when New York
City gave that right to same-sex couples in 1993. Con-
cerned about Spyer’s health, the couple made the 2007 trip
to Canada for their marriage, but they continued to reside
Cite as: 570 U. S. ____ (2013) 3
Opinion of the Court
in New York City. The State of New York deems their
Ontario marriage to be a valid one. See 699 F. 3d 169,
177–178 (CA2 2012).
Spyer died in February 2009, and left her entire estate
to Windsor. Because DOMA denies federal recognition to
same-sex spouses, Windsor did not qualify for the marital
exemption from the federal estate tax, which excludes
from taxation “any interest in property which passes or
has passed from the decedent to his surviving spouse.” 26
U. S. C. §2056(a). Windsor paid $363,053 in estate taxes
and sought a refund. The Internal Revenue Service de-
nied the refund, concluding that, under DOMA, Windsor
was not a “surviving spouse.” Windsor commenced
this refund suit in the United States District Court for
the Southern District of New York. She contended
that DOMA violates the guarantee of equal protection,
as applied to the Federal Government through the Fifth
Amendment.
While the tax refund suit was pending, the Attorney
General of the United States notified the Speaker of the
House of Representatives, pursuant to 28 U. S. C. §530D,
that the Department of Justice would no longer defend the
constitutionality of DOMA’s §3. Noting that “the Depart-
ment has previously defended DOMA against . . . chal-
lenges involving legally married same-sex couples,” App.
184, the Attorney General informed Congress that “the
President has concluded that given a number of factors,
including a documented history of discrimination, classifi-
cations based on sexual orientation should be subject to
a heightened standard of scrutiny.” Id., at 191. The De-
partment of Justice has submitted many §530D letters
over the years refusing to defend laws it deems unconsti-
tutional, when, for instance, a federal court has rejected
the Government’s defense of a statute and has issued a
judgment against it. This case is unusual, however, be-
cause the §530D letter was not preceded by an adverse
4 UNITED STATES v. WINDSOR
Opinion of the Court
judgment. The letter instead reflected the Executive’s
own conclusion, relying on a definition still being debated
and considered in the courts, that heightened equal pro-
tection scrutiny should apply to laws that classify on the
basis of sexual orientation.
Although “the President . . . instructed the Department
not to defend the statute in Windsor,” he also decided
“that Section 3 will continue to be enforced by the Execu-
tive Branch” and that the United States had an “interest
in providing Congress a full and fair opportunity to partic-
ipate in the litigation of those cases.” Id., at 191–193. The
stated rationale for this dual-track procedure (determina-
tion of unconstitutionality coupled with ongoing enforce-
ment) was to “recogniz[e] the judiciary as the final arbiter
of the constitutional claims raised.” Id., at 192.
In response to the notice from the Attorney General,
the Bipartisan Legal Advisory Group (BLAG) of the House
of Representatives voted to intervene in the litigation to
defend the constitutionality of §3 of DOMA. The Depart-
ment of Justice did not oppose limited intervention by
BLAG. The District Court denied BLAG’s motion to enter
the suit as of right, on the rationale that the United States
already was represented by the Department of Justice.
The District Court, however, did grant intervention by
BLAG as an interested party. See Fed. Rule Civ. Proc.
24(a)(2).
On the merits of the tax refund suit, the District Court
ruled against the United States. It held that §3 of DOMA
is unconstitutional and ordered the Treasury to refund the
tax with interest. Both the Justice Department and BLAG
filed notices of appeal, and the Solicitor General filed a
petition for certiorari before judgment. Before this Court
acted on the petition, the Court of Appeals for the Second
Circuit affirmed the District Court’s judgment. It applied
heightened scrutiny to classifications based on sexual
orientation, as both the Department and Windsor had
Cite as: 570 U. S. ____ (2013) 5
Opinion of the Court
urged. The United States has not complied with the judg-
ment. Windsor has not received her refund, and the Ex-
ecutive Branch continues to enforce §3 of DOMA.
In granting certiorari on the question of the constitu-
tionality of §3 of DOMA, the Court requested argument
on two additional questions: whether the United States’
agreement with Windsor’s legal position precludes further
review and whether BLAG has standing to appeal the
case. All parties agree that the Court has jurisdiction to
decide this case; and, with the case in that framework, the
Court appointed Professor Vicki Jackson as amicus curiae
to argue the position that the Court lacks jurisdiction to
hear the dispute. 568 U. S. ___ (2012). She has ably
discharged her duties.
In an unrelated case, the United States Court of Ap-
peals for the First Circuit has also held §3 of DOMA to be
unconstitutional. A petition for certiorari has been filed in
that case. Pet. for Cert. in Bipartisan Legal Advisory
Group v. Gill, O. T. 2012, No. 12–13.
II
It is appropriate to begin by addressing whether either
the Government or BLAG, or both of them, were entitled
to appeal to the Court of Appeals and later to seek certio-
rari and appear as parties here.
There is no dispute that when this case was in the
District Court it presented a concrete disagreement be-
tween opposing parties, a dispute suitable for judicial
resolution. “[A] taxpayer has standing to challenge the
collection of a specific tax assessment as unconstitutional;
being forced to pay such a tax causes a real and immediate
economic injury to the individual taxpayer.” Hein v. Free­
dom From Religion Foundation, Inc., 551 U. S. 587, 599
(2007) (plurality opinion) (emphasis deleted). Windsor
suffered a redressable injury when she was required to
pay estate taxes from which, in her view, she was exempt
6 UNITED STATES v. WINDSOR
Opinion of the Court
but for the alleged invalidity of §3 of DOMA.
The decision of the Executive not to defend the constitu-
tionality of §3 in court while continuing to deny refunds
and to assess deficiencies does introduce a complication.
Even though the Executive’s current position was an-
nounced before the District Court entered its judgment,
the Government’s agreement with Windsor’s position would
not have deprived the District Court of jurisdiction to
entertain and resolve the refund suit; for her injury (fail-
ure to obtain a refund allegedly required by law) was
concrete, persisting, and unredressed. The Government’s
position—agreeing with Windsor’s legal contention but
refusing to give it effect—meant that there was a justicia-
ble controversy between the parties, despite what the
claimant would find to be an inconsistency in that stance.
Windsor, the Government, BLAG, and the amicus appear
to agree upon that point. The disagreement is over the
standing of the parties, or aspiring parties, to take an
appeal in the Court of Appeals and to appear as parties in
further proceedings in this Court.
The amicus’ position is that, given the Government’s
concession that §3 is unconstitutional, once the District
Court ordered the refund the case should have ended;
and the amicus argues the Court of Appeals should have
dismissed the appeal. The amicus submits that once
the President agreed with Windsor’s legal position and the
District Court issued its judgment, the parties were no
longer adverse. From this standpoint the United States
was a prevailing party below, just as Windsor was. Ac-
cordingly, the amicus reasons, it is inappropriate for this
Court to grant certiorari and proceed to rule on the merits;
for the United States seeks no redress from the judgment
entered against it.
This position, however, elides the distinction between
two principles: the jurisdictional requirements of Article
III and the prudential limits on its exercise. See Warth v.
Cite as: 570 U. S. ____ (2013) 7
Opinion of the Court
Seldin, 422 U. S. 490, 498 (1975). The latter are “essen-
tially matters of judicial self-governance.” Id., at 500.
The Court has kept these two strands separate: “Article
III standing, which enforces the Constitution’s case-or-
controversy requirement, see Lujan v. Defenders of Wildlife,
504 U. S. 555, 559–562 (1992); and prudential standing,
which embodies ‘judicially self-imposed limits on the exer-
cise of federal jurisdiction,’ Allen [v. Wright,] 468 U. S.
[737,] 751 [(1984)].” Elk Grove Unified School Dist. v.
Newdow, 542 U. S. 1, 11–12 (2004).
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.” ’ Second,
there must be a causal connection between the injury
and the conduct complained of—the injury has to be
‘fairly . . . trace[able] to the challenged action of the
defendant, and not . . . th[e] result [of] the independ-
ent action of some third party not before the court.’
Third, it must be ‘likely,’ as opposed to merely ‘specu-
lative,’ that the injury will be ‘redressed by a favor-
able decision.’ ” Lujan, supra, at 560–561 (footnote and
citations omitted).
Rules of prudential standing, by contrast, are more flex-
ible “rule[s] . . . of federal appellate practice,” Deposit
Guaranty Nat. Bank v. Roper, 445 U. S. 326, 333 (1980),
designed to protect the courts from “decid[ing] abstract
questions of wide public significance even [when] other
governmental institutions may be more competent to ad-
dress the questions and even though judicial intervention
may be unnecessary to protect individual rights.” Warth,
supra, at 500.
In this case the United States retains a stake sufficient
to support Article III jurisdiction on appeal and in pro-
8 UNITED STATES v. WINDSOR
Opinion of the Court
ceedings before this Court. The judgment in question
orders the United States to pay Windsor the refund she
seeks. An order directing the Treasury to pay money is “a
real and immediate economic injury,” Hein, 551 U. S., at
599, indeed as real and immediate as an order directing
an individual to pay a tax. That the Executive may wel-
come this order to pay the refund if it is accompanied by
the constitutional ruling it wants does not eliminate the
injury to the national Treasury if payment is made, or to
the taxpayer if it is not. The judgment orders the United
States to pay money that it would not disburse but for the
court’s order. The Government of the United States has a
valid legal argument that it is injured even if the Execu-
tive disagrees with §3 of DOMA, which results in Wind-
sor’s liability for the tax. Windsor’s ongoing claim for
funds that the United States refuses to pay thus estab-
lishes a controversy sufficient for Article III jurisdiction.
It would be a different case if the Executive had taken
the further step of paying Windsor the refund to which she
was entitled under the District Court’s ruling.
This Court confronted a comparable case in INS v.
Chadha, 462 U. S. 919 (1983). A statute by its terms
allowed one House of Congress to order the Immigration
and Naturalization Service (INS) to deport the respondent
Chadha. There, as here, the Executive determined that
the statute was unconstitutional, and “the INS presented
the Executive’s views on the constitutionality of the House
action to the Court of Appeals.” Id., at 930. The INS,
however, continued to abide by the statute, and “the INS
brief to the Court of Appeals did not alter the agency’s
decision to comply with the House action ordering depor-
tation of Chadha.” Ibid. This Court held “that the INS
was sufficiently aggrieved by the Court of Appeals deci-
sion prohibiting it from taking action it would otherwise
take,” ibid., regardless of whether the agency welcomed
the judgment. The necessity of a “case or controversy” to
Cite as: 570 U. S. ____ (2013) 9
Opinion of the Court
satisfy Article III was defined as a requirement that the
Court’s “ ‘decision will have real meaning: if we rule for
Chadha, he will not be deported; if we uphold [the stat-
ute], the INS will execute its order and deport him.’ ” Id.,at 939–940 (quoting Chadha v. INS, 634 F. 2d 408, 419
(CA9 1980)). This conclusion was not dictum. It was a
necessary predicate to the Court’s holding that “prior to
Congress’ intervention, there was adequate Art. III ad-
verseness.” 462 U. S., at 939. The holdings of cases are
instructive, and the words of Chadha make clear its hold-
ing that the refusal of the Executive to provide the relief
sought suffices to preserve a justiciable dispute as re-
quired by Article III. In short, even where “the Govern-
ment largely agree[s] with the opposing party on the
merits of the controversy,” there is sufficient adverseness
and an “adequate basis for jurisdiction in the fact that
the Government intended to enforce the challenged law
against that party.” Id., at 940, n. 12.
It is true that “[a] party who receives all that he has
sought generally is not aggrieved by the judgment afford-
ing the relief and cannot appeal from it.” Roper, supra, at
333, see also Camreta v. Greene, 563 U. S. ___, ___ (2011)
(slip op., at 8) (“As a matter of practice and prudence, we
have generally declined to consider cases at the request of
a prevailing party, even when the Constitution allowed us
to do so”). But this rule “does not have its source in the
jurisdictional limitations of Art. III. In an appropriate
case, appeal may be permitted . . . at the behest of the
party who has prevailed on the merits, so long as that
party retains a stake in the appeal satisfying the require-
ments of Art. III.” Roper, supra, at 333–334.
While these principles suffice to show that this case
presents a justiciable controversy under Article III, the
prudential problems inherent in the Executive’s unusual
position require some further discussion. The Executive’s
agreement with Windsor’s legal argument raises the risk
10 UNITED STATES v. WINDSOR
Opinion of the Court
that instead of a “ ‘real, earnest and vital controversy,’ ”
the Court faces a “friendly, non-adversary, proceeding . . .
[in which] ‘a party beaten in the legislature [seeks to]
transfer to the courts an inquiry as to the constitutionality
of the legislative act.’ ” Ashwander v. TVA, 297 U. S.
288, 346 (1936) (Brandeis, J., concurring) (quoting Chicago
& Grand Trunk R. Co. v. Wellman, 143 U. S. 339,
345 (1892)). Even when Article III permits the exercise
of federal jurisdiction, prudential considerations demand
that the Court insist upon “that concrete adverseness
which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult consti-
tutional questions.” Baker v. Carr, 369 U. S. 186, 204
(1962).
There are, of course, reasons to hear a case and issue a
ruling even when one party is reluctant to prevail in its
position. Unlike Article III requirements—which must
be satisfied by the parties before judicial consideration is
appropriate—the relevant prudential factors that counsel
against hearing this case are subject to “countervailing
considerations [that] may outweigh the concerns underly-
ing the usual reluctance to exert judicial power.” Warth,
422 U. S., at 500–501. One consideration is the extent to
which adversarial presentation of the issues is assured by
the participation of amici curiae prepared to defend with
vigor the constitutionality of the legislative act. With
respect to this prudential aspect of standing as well, the
Chadha Court encountered a similar situation. It noted
that “there may be prudential, as opposed to Art. III,
concerns about sanctioning the adjudication of [this case]
in the absence of any participant supporting the validity of
[the statute]. The Court of Appeals properly dispelled any
such concerns by inviting and accepting briefs from both
Houses of Congress.” 462 U. S., at 940. Chadha was not
an anomaly in this respect. The Court adopts the practice
of entertaining arguments made by an amicus when the
Cite as: 570 U. S. ____ (2013) 11
Opinion of the Court
Solicitor General confesses error with respect to a judg-
ment below, even if the confession is in effect an admission
that an Act of Congress is unconstitutional. See, e.g.,
Dickerson v. United States, 530 U. S. 428 (2000).
In the case now before the Court the attorneys for BLAG
present a substantial argument for the constitutionality
of §3 of DOMA. BLAG’s sharp adversarial presentation of
the issues satisfies the prudential concerns that otherwise
might counsel against hearing an appeal from a decision
with which the principal parties agree. Were this Court
to hold that prudential rules require it to dismiss the case,
and, in consequence, that the Court of Appeals erred in
failing to dismiss it as well, extensive litigation would
ensue. The district courts in 94 districts throughout the
Nation would be without precedential guidance not only in
tax refund suits but also in cases involving the whole of
DOMA’s sweep involving over 1,000 federal statutes and a
myriad of federal regulations. For instance, the opinion of
the Court of Appeals for the First Circuit, addressing the
validity of DOMA in a case involving regulations of the
Department of Health and Human Services, likely would
be vacated with instructions to dismiss, its ruling and
guidance also then erased. See Massachusetts v. United
States Dept. of Health and Human Servs., 682 F. 3d 1(CA1 2012). Rights and privileges of hundreds of thou-
sands of persons would be adversely affected, pending a
case in which all prudential concerns about justiciability
are absent. That numerical prediction may not be certain,
but it is certain that the cost in judicial resources and
expense of litigation for all persons adversely affected
would be immense. True, the very extent of DOMA’s
mandate means that at some point a case likely would
arise without the prudential concerns raised here; but the
costs, uncertainties, and alleged harm and injuries likely
would continue for a time measured in years before the
issue is resolved. In these unusual and urgent circum-
12 UNITED STATES v. WINDSOR
Opinion of the Court
stances, the very term “prudential” counsels that it is a
proper exercise of the Court’s responsibility to take juris-
diction. For these reasons, the prudential and Article III
requirements are met here; and, as a consequence, the
Court need not decide whether BLAG would have stand-
ing to challenge the District Court’s ruling and its affir-
mance in the Court of Appeals on BLAG’s own authority.
The Court’s conclusion that this petition may be heard
on the merits does not imply that no difficulties would
ensue if this were a common practice in ordinary cases.
The Executive’s failure to defend the constitutionality of
an Act of Congress based on a constitutional theory not yet
established in judicial decisions has created a procedural
dilemma. On the one hand, as noted, the Government’s
agreement with Windsor raises questions about the pro-
priety of entertaining a suit in which it seeks affirmance of
an order invalidating a federal law and ordering the United
States to pay money. On the other hand, if the Execu-
tive’s agreement with a plaintiff that a law is unconsti-
tutional is enough to preclude judicial review, then the
Supreme Court’s primary role in determining the constitu-
tionality of a law that has inflicted real injury on a plain-
tiff who has brought a justiciable legal claim would
become only secondary to the President’s. This would
undermine the clear dictate of the separation-of-powers
principle that “when an Act of Congress is alleged to con-
flict with the Constitution, ‘[i]t is emphatically the prov-
ince and duty of the judicial department to say what the
law is.’ ” Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012)
(slip op., at 7) (quoting Marbury v. Madison, 1 Cranch 137,
177 (1803)). Similarly, with respect to the legislative
power, when Congress has passed a statute and a Presi-
dent has signed it, it poses grave challenges to the separa-
tion of powers for the Executive at a particular moment to
be able to nullify Congress’ enactment solely on its own
initiative and without any determination from the Court.
Cite as: 570 U. S. ____ (2013) 13
Opinion of the Court
The Court’s jurisdictional holding, it must be under-
scored, does not mean the arguments for dismissing this
dispute on prudential grounds lack substance. Yet the
difficulty the Executive faces should be acknowledged.
When the Executive makes a principled determination
that a statute is unconstitutional, it faces a difficult
choice. Still, there is no suggestion here that it is appro-
priate for the Executive as a matter of course to challenge
statutes in the judicial forum rather than making the case
to Congress for their amendment or repeal. The integrity
of the political process would be at risk if difficult consti-
tutional issues were simply referred to the Court as a
routine exercise. But this case is not routine. And the
capable defense of the law by BLAG ensures that these
prudential issues do not cloud the merits question, which
is one of immediate importance to the Federal Govern-
ment and to hundreds of thousands of persons. These cir-
cumstances support the Court’s decision to proceed to the
merits.
III
When at first Windsor and Spyer longed to marry, nei-
ther New York nor any other State granted them that
right. After waiting some years, in 2007 they traveled to
Ontario to be married there. It seems fair to conclude
that, until recent years, many citizens had not even con-
sidered 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. For marriage
between a man and a woman no doubt had been thought
of by most people as essential to the very definition of that
term and to its role and function throughout the history of
civilization. That belief, for many who long have held it,
became even more urgent, more cherished when chal-
lenged. For others, however, came the beginnings of a
new perspective, a new insight. Accordingly some States
14 UNITED STATES v. WINDSOR
Opinion of the Court
concluded that same-sex marriage ought to be given
recognition and validity in the law for those same-sex
couples who wish to define themselves by their commit-
ment to each other. The limitation of lawful marriage
to heterosexual couples, which for centuries had been
deemed both necessary and fundamental, came to be
seen in New York and certain other States as an unjust
exclusion.
Slowly at first and then in rapid course, the laws of
New York came to acknowledge the urgency of this issue for
same-sex couples who wanted to affirm their commitment
to one another before their children, their family, their
friends, and their community. And so New York recog-
nized same-sex marriages performed elsewhere; and then
it later amended its own marriage laws to permit same-
sex marriage. New York, in common with, as of this writ-
ing, 11 other States and the District of Columbia, decided
that same-sex couples should have the right to marry and
so live with pride in themselves and their union and in a
status of equality with all other married persons. After a
statewide deliberative process that enabled its citizens to
discuss and weigh arguments for and against same-
sex marriage, New York acted to enlarge the definition of
marriage to correct what its citizens and elected repre-
sentatives perceived to be an injustice that they had not
earlier known or understood. See Marriage Equality Act,
2011 N. Y. Laws 749 (codified at N. Y. Dom. Rel. Law Ann.
§§10–a, 10–b, 13 (West 2013)).
Against this background of lawful same-sex marriage
in some States, the design, purpose, and effect of DOMA
should be considered as the beginning point in deciding
whether it is valid under the Constitution. By history and
tradition the definition and regulation of marriage, as will
be discussed in more detail, has been treated as being
within the authority and realm of the separate States. Yet
it is further established that Congress, in enacting dis-
Cite as: 570 U. S. ____ (2013) 15
Opinion of the Court
crete statutes, can make determinations that bear on
marital rights and privileges. Just this Term the Court
upheld the authority of the Congress to pre-empt state
laws, allowing a former spouse to retain life insurance
proceeds under a federal program that gave her priority,
because of formal beneficiary designation rules, over the
wife by a second marriage who survived the husband.
Hillman v. Maretta, 569 U. S. ___ (2013); see also Ridgway
v. Ridgway, 454 U. S. 46 (1981); Wissner v. Wissner, 338
U. S. 655 (1950). This is one example of the general prin-
ciple that when the Federal Government acts in the exer-
cise of its own proper authority, it has a wide choice of the
mechanisms and means to adopt. See McCulloch v. Mary­
land, 4 Wheat. 316, 421 (1819). Congress has the power
both to ensure efficiency in the administration of its pro-
grams and to choose what larger goals and policies to
pursue.
Other precedents involving congressional statutes which
affect marriages and family status further illustrate this
point. In addressing the interaction of state domestic
relations and federal immigration law Congress deter-
mined that marriages “entered into for the purpose of
procuring an alien’s admission [to the United States] as an
immigrant” will not qualify the noncitizen for that status,
even if the noncitizen’s marriage is valid and proper for
state-law purposes. 8 U. S. C. §1186a(b)(1) (2006 ed. and
Supp. V). 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. 42 U. S. C. §1382c(d)(2).
Though these discrete examples establish the constitu-
tionality of limited federal laws that regulate the meaning
of marriage in order to further federal policy, DOMA has a
far greater reach; for it enacts a directive applicable to
16 UNITED STATES v. WINDSOR
Opinion of the Court
over 1,000 federal statutes and the whole realm of federal
regulations. And its operation is directed to a class of
persons that the laws of New York, and of 11 other States,
have sought to protect. See Goodridge v. Department of
Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003); An
Act Implementing the Guarantee of Equal Protection
Under the Constitution of the State for Same Sex Couples,
2009 Conn. Pub. Acts no. 09–13; Varnum v. Brien, 763
N. W. 2d 862 (Iowa 2009); Vt. Stat. Ann., Tit. 15, §8
(2010); N. H. Rev. Stat. Ann. §457:1–a (West Supp. 2012);
Religious Freedom and Civil Marriage Equality Amend-
ment Act of 2009, 57 D. C. Reg. 27 (Dec. 18, 2009); N. Y.
Dom. Rel. Law Ann. §10–a (West Supp. 2013); Wash.
Rev. Code §26.04.010 (2012); Citizen Initiative, Same-
Sex Marriage, Question 1 (Me. 2012) (results online at
http: / / w w w.maine.gov/sos/cec/elec/2012/tab -ref-2012.html
(all Internet sources as visited June 18, 2013, and avail-
able in Clerk of Court’s case file)); Md. Fam. Law Code Ann.
§2–201 (Lexis 2012); An Act to Amend Title 13 of the
Delaware Code Relating to Domestic Relations to Provide
for Same-Gender Civil Marriage and to Convert Exist-
ing Civil Unions to Civil Marriages, 79 Del. Laws ch. 19
(2013); An act relating to marriage; providing for civil
marriage between two persons; providing for exemptions
and protections based on religious association, 2013 Minn.
Laws ch. 74; An Act Relating to Domestic Relations—
Persons Eligible to Marry, 2013 R. I. Laws ch. 4.
In order to assess the validity of that intervention it is
necessary to discuss the extent of the state power and au-
thority over marriage as a matter of history and tradi-
tion. State laws defining and regulating marriage, of
course, must respect the constitutional rights of persons,
see, e.g., Loving v. Virginia, 388 U. S. 1 (1967); but, subject
to those guarantees, “regulation of domestic relations” is
“an area that has long been regarded as a virtually exclu-
sive province of the States.” Sosna v. Iowa, 419 U. S. 393,
Cite as: 570 U. S. ____ (2013) 17
Opinion of the Court
404 (1975).
The recognition of civil marriages is central to state
domestic relations law applicable to its residents and
citizens. See Williams v. North Carolina, 317 U. S. 287,
298 (1942) (“Each state as a sovereign has a rightful and
legitimate concern in the marital status of persons domi-
ciled within its borders”). The definition of marriage is
the foundation of the State’s broader authority to regulate
the subject of domestic relations with respect to the
“[p]rotection of offspring, property interests, and the en-
forcement of marital responsibilities.” Ibid. “[T]he states,
at the time of the adoption of the Constitution, possessed
full power over the subject of marriage and divorce
. . . [and] the Constitution delegated no authority to the
Government of the United States on the subject of mar-
riage and divorce.” Haddock v. Haddock, 201 U. S. 562,
575 (1906); see also In re Burrus, 136 U. S. 586, 593–594
(1890) (“The whole subject of the domestic relations of
husband and wife, parent and child, belongs to the laws
of the States and not to the laws of the United States”).
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
De Sylva v. Ballentine, 351 U. S. 570 (1956), for example,
the Court held that, “[t]o decide who is the widow or wid-
ower of a deceased author, or who are his executors or
next of kin,” under the Copyright Act “requires a reference
to the law of the State which created those legal relation-
ships” because “there is no federal law of domestic rela-
tions.” Id., at 580. 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. See Ankenbrandt v. Rich­
ards, 504 U. S. 689, 703 (1992). Federal courts will not
hear divorce and custody cases even if they arise in diver-
sity because of “the virtually exclusive primacy . . . of the
18 UNITED STATES v. WINDSOR
Opinion of the Court
States in the regulation of domestic relations.” Id., at 714(Blackmun, J., concurring in judgment).
The significance of state responsibilities for the defini-
tion and regulation of marriage dates to the Nation’s
beginning; for “when the Constitution was adopted the
common understanding was that the domestic relations of
husband and wife and parent and child were matters
reserved to the States.” Ohio ex rel. Popovici v. Agler, 280
U. S. 379, 383–384 (1930). Marriage laws vary in some
respects from State to State. For example, the required
minimum age is 16 in Vermont, but only 13 in New
Hampshire. Compare Vt. Stat. Ann., Tit. 18, §5142 (2012),
with N. H. Rev. Stat. Ann. §457:4 (West Supp. 2012).
Likewise the permissible degree of consanguinity can vary
(most States permit first cousins to marry, but a handful—
such as Iowa and Washington, see Iowa Code §595.19(2009); Wash. Rev. Code §26.04.020 (2012)—prohibit the
practice). But these rules are in every event consistent
within each State.
Against this background DOMA rejects the long-
established precept that the incidents, benefits, and obli-
gations of marriage are uniform for all married couples
within each State, though they may vary, subject to con-
stitutional guarantees, from one State to the next. De-
spite these considerations, it is unnecessary to decide
whether this federal intrusion on state power is a violation
of the Constitution because it disrupts the federal balance.
The State’s power in defining the marital relation is of
central relevance in this case quite apart from principles
of federalism. Here the State’s decision to give this class
of persons the right to marry conferred upon them a dignity
and status of immense import. When the State used its
historic and essential authority to define the marital
relation in this way, its role and its power in making the
decision enhanced the recognition, dignity, and protection
of the class in their own community. DOMA, because of
Cite as: 570 U. S. ____ (2013) 19
Opinion of the Court
its reach and extent, departs from this history and tra-
dition of reliance on state law to define marriage. “ ‘[D]is-
criminations of an unusual character especially sug-
gest careful consideration to determine whether they are
obnoxious to the constitutional provision.’ ” Romer v.
Evans, 517 U. S. 620, 633 (1996) (quoting Louisville Gas &
Elec. Co. v. Coleman, 277 U. S. 32, 37–38 (1928)).
The Federal Government uses this state-defined class
for the opposite purpose—to impose restrictions and dis-
abilities. That result requires this Court now to address
whether the resulting injury and indignity is a deprivation
of an essential part of the liberty protected by the Fifth
Amendment. What the State of New York treats as alike
the federal law deems unlike by a law designed to injure
the same class the State seeks to protect.
In acting first to recognize and then to allow same-sex
marriages, New York was responding “to the initiative of
those who [sought] a voice in shaping the destiny of their
own times.” Bond v. United States, 564 U. S. ___, ___
(2011) (slip op., at 9). These actions were without doubt a
proper exercise of its sovereign authority within our fed-
eral system, all in the way that the Framers of the Constitu-
tion intended. The dynamics of state government in the
federal system are to allow the formation of consensus
respecting the way the members of a discrete community
treat each other in their daily contact and constant inter-
action with each other.
The States’ interest in defining and regulating the
marital relation, subject to constitutional guarantees,
stems from the understanding that marriage is more than
a routine classification for purposes of certain statutory
benefits. Private, consensual sexual intimacy between two
adult persons of the same sex may not be punished by the
State, and it can form “but one element in a personal bond
that is more enduring.” Lawrence v. Texas, 539 U. S. 558,
567 (2003). By its recognition of the validity of same-sex
20 UNITED STATES v. WINDSOR
Opinion of the Court
marriages performed in other jurisdictions and then by
authorizing same-sex unions and same-sex marriages,
New York sought to give further protection and dignity to
that bond. For same-sex couples who wished to be mar-
ried, the State acted to give their lawful conduct a lawful
status. This status is a far-reaching legal acknowledg-
ment of the intimate relationship between two people, a
relationship deemed by the State worthy of dignity in the
community equal with all other marriages. It reflects both
the community’s considered perspective on the historical
roots of the institution of marriage and its evolving under-
standing of the meaning of equality.
IV
DOMA seeks to injure the very class New York seeks to
protect. By doing so it violates basic due process and
equal protection principles applicable to the Federal Gov-
ernment. See U. S. Const., Amdt. 5; Bolling v. Sharpe,
347 U. S. 497 (1954). The Constitution’s guarantee of
equality “must at the very least mean that a bare con-
gressional desire to harm a politically unpopular group
cannot” justify disparate treatment of that group. Depart­
ment of Agriculture v. Moreno, 413 U. S. 528, 534–535
(1973). In determining whether a law is motived by an
improper animus or purpose, “ ‘[d]iscriminations of an un-
usual character’ ” especially require careful considera-
tion. Supra, at 19 (quoting Romer, supra, at 633). DOMA
cannot survive under these principles. The responsibility
of the States for the regulation of domestic relations is an
important indicator of the substantial societal impact the
State’s classifications have in the daily lives and customs
of its people. DOMA’s unusual deviation from the usual
tradition of recognizing and accepting state definitions of
marriage here operates to deprive same-sex couples of the
benefits and responsibilities that come with the federal
recognition of their marriages. This is strong evidence of a
Cite as: 570 U. S. ____ (2013) 21
Opinion of the Court
law having the purpose and effect of disapproval of that
class. The avowed purpose and practical effect of the law
here in question 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 of
the States.
The history of DOMA’s enactment and its own text
demonstrate that interference with the equal dignity of
same-sex marriages, a dignity conferred by the States in
the exercise of their sovereign power, was more than an
incidental effect of the federal statute. It was its essence.
The House Report announced its conclusion that “it is both
appropriate and necessary for Congress to do what it can
to defend the institution of traditional heterosexual mar-
riage. . . . H. R. 3396 is appropriately entitled the ‘Defense
of Marriage Act.’ The effort to redefine ‘marriage’ to ex-
tend to homosexual couples is a truly radical proposal that
would fundamentally alter the institution of marriage.”
H. R. Rep. No. 104–664, pp. 12–13 (1996). The House
concluded that DOMA expresses “both moral disapproval
of homosexuality, and a moral conviction that heterosexu-
ality better comports with traditional (especially Judeo-
Christian) morality.” Id., at 16 (footnote deleted). The
stated purpose of the law was to promote an “interest in
protecting the traditional moral teachings reflected in
heterosexual-only marriage laws.” Ibid. Were there any
doubt of this far-reaching purpose, the title of the Act
confirms it: The Defense of Marriage.
The arguments put forward by BLAG are just as candid
about the congressional purpose to influence or interfere
with state sovereign choices about who may be married.
As the title and dynamics of the bill indicate, its purpose is
to discourage enactment of state same-sex marriage laws
and to restrict the freedom and choice of couples married
under those laws if they are enacted. The congressional
goal was “to put a thumb on the scales and influence a
22 UNITED STATES v. WINDSOR
Opinion of the Court
state’s decision as to how to shape its own marriage laws.”
Massachusetts, 682 F. 3d, at 12–13. The Act’s demon-
strated purpose is to ensure that if any State decides to
recognize same-sex marriages, those unions will be treated
as second-class marriages for purposes of federal law.
This raises a most serious question under the Constitu-
tion’s Fifth Amendment.
DOMA’s operation in practice confirms this purpose.
When New York adopted a law to permit same-sex mar-
riage, it sought to eliminate inequality; but DOMA frus-
trates that objective through a system-wide enactment
with no identified connection to any particular area of fed-
eral law. DOMA writes inequality into the entire United
States Code. The particular case at hand concerns the
estate tax, but DOMA is more than a simple determi-
nation of what should or should not be allowed as an
estate tax refund. Among the over 1,000 statutes and
numerous federal regulations that DOMA controls are
laws pertaining to Social Security, housing, taxes, crimi-
nal sanctions, copyright, and veterans’ benefits.
DOMA’s principal effect is to identify a subset of state-
sanctioned marriages and make them unequal. The prin-
cipal purpose is to impose inequality, not for other reasons
like governmental efficiency. Responsibilities, as well as
rights, enhance the dignity and integrity of the person.
And DOMA contrives to deprive some couples married
under the laws of their State, but not other couples, of
both rights and responsibilities. By creating two contra-
dictory 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. By this dynamic DOMA under-
mines both the public and private significance of state-
sanctioned same-sex marriages; for it tells those couples,
Cite as: 570 U. S. ____ (2013) 23
Opinion of the Court
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. 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. And it humiliates tens of thousands
of children now being raised by same-sex couples. The law
in question makes it even more difficult for the children to
understand the integrity and closeness of their own family
and its concord with other families in their community
and in their daily lives.
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. It prevents same-sex married couples
from obtaining government healthcare benefits they would
otherwise receive. See 5 U. S. C. §§8901(5), 8905. It
deprives them of the Bankruptcy Code’s special protec-
tions for domestic-support obligations. See 11 U. S. C.
§§101(14A), 507(a)(1)(A), 523(a)(5), 523(a)(15). It forces
them to follow a complicated procedure to file their state
and federal taxes jointly. Technical Bulletin TB–55, 2010
Vt. Tax LEXIS 6 (Oct. 7, 2010); Brief for Federalism
Scholars as Amici Curiae 34. It prohibits them from being
buried together in veterans’ cemeteries. National Ceme-
tery Administration Directive 3210/1, p. 37 (June 4, 2008).
For certain married couples, DOMA’s unequal effects
are even more serious. The federal penal code makes it a
crime to “assaul[t], kidna[p], or murde[r] . . . a member of
the immediate family” of “a United States official, a
United States judge, [or] a Federal law enforcement officer,”
18 U. S. C. §115(a)(1)(A), with the intent to influence or
retaliate against that official, §115(a)(1). Although a
“spouse” qualifies as a member of the officer’s “immediate
24 UNITED STATES v. WINDSOR
Opinion of the Court
family,” §115(c)(2), DOMA makes this protection inappli-
cable to same-sex spouses.
DOMA also brings financial harm to children of same-
sex couples. It raises the cost of health care for families
by taxing health benefits provided by employers to their
workers’ same-sex spouses. See 26 U. S. C. §106; Treas.
Reg. §1.106–1, 26 CFR §1.106–1 (2012); IRS Private Letter
Ruling 9850011 (Sept. 10, 1998). And it denies or re-
duces benefits allowed to families upon the loss of a spouse
and parent, benefits that are an integral part of family
security. See Social Security Administration, Social Secu-
rity Survivors Benefits 5 (2012) (benefits available to a
surviving spouse caring for the couple’s child), online at
http://www.ssa.gov/pubs/EN-05-10084.pdf.
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. For instance, because it is ex-
pected that spouses will support each other as they pursue
educational opportunities, federal law takes into consider-
ation a spouse’s income in calculating a student’s fed-
eral financial aid eligibility. See 20 U. S. C. §1087nn(b).
Same-sex married couples are exempt from this require-
ment. The same is true with respect to federal ethics
rules. Federal executive and agency officials are prohibit-
ed from “participat[ing] personally and substantially” in
matters as to which they or their spouses have a financial
interest. 18 U. S. C. §208(a). A similar statute prohibits
Senators, Senate employees, and their spouses from ac-
cepting high-value gifts from certain sources, see 2
U. S. C. §31–2(a)(1), and another mandates detailed finan-
cial disclosures by numerous high-ranking officials and
their spouses. See 5 U. S. C. App. §§102(a), (e). Under
DOMA, however, these Government-integrity rules do not
apply to same-sex spouses.
Cite as: 570 U. S. ____ (2013) 25
Opinion of the Court
* * *
The power the Constitution grants it also restrains.
And though Congress has great authority to design laws to
fit its own conception of sound national policy, it cannot
deny the liberty protected by the Due Process Clause of
the Fifth Amendment.
What has been explained to this point should more than
suffice to establish that the principal purpose and the
necessary effect of this law are to demean those persons
who are in a lawful same-sex marriage. This requires
the Court to hold, as it now does, that DOMA is unconsti-
tutional as a deprivation of the liberty of the person pro-
tected 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. Peña, 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 Amend-
ment makes that Fifth Amendment right all the more
specific and all the better understood and preserved.
The class to which DOMA directs its restrictions and
restraints are those persons who are joined in same-sex
marriages made lawful by the State. DOMA singles out a
class of persons deemed by a State entitled to recognition
and protection to enhance their own liberty. It imposes a
disability on the class by refusing to acknowledge a status
the State finds to be dignified and proper. DOMA in-
structs all federal officials, and indeed all persons with
whom same-sex couples interact, including their own
children, that their marriage is less worthy than the mar-
riages of others. The federal statute is invalid, for no
legitimate purpose overcomes the purpose and effect to
disparage and to injure those whom the State, by its mar-
26 UNITED STATES v. WINDSOR
Opinion of the Court
riage laws, sought to protect in personhood and dignity.
By seeking to displace this protection and treating those
persons as living in marriages less respected than others,
the federal statute is in violation of the Fifth Amendment.
This opinion and its holding are confined to those lawful
marriages.
The judgment of the Court of Appeals for the Second
Circuit is affirmed.
It is so ordered.
Cite as: 570 U. S. ____ (2013) 1
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–307
_________________
UNITED STATES, PETITIONER v. EDITH SCHLAIN
WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE
ESTATE OF THEA CLARA SPYER, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 26, 2013]
CHIEF JUSTICE ROBERTS, dissenting.
I agree with JUSTICE SCALIA that this Court lacks juris-
diction to review the decisions of the courts below. On
the merits of the constitutional dispute the Court decides to
decide, I also agree with JUSTICE SCALIA that Congress
acted constitutionally in passing the Defense of Marriage
Act (DOMA). Interests in uniformity and stability am-
ply justified Congress’s decision to retain the definition of
marriage that, at that point, had been adopted by every
State in our Nation, and every nation in the world. Post,
at 19–20 (dissenting opinion).
The majority sees a more sinister motive, pointing out
that the Federal Government has generally (though not
uniformly) deferred to state definitions of marriage in the
past. That is true, of course, but none of those prior state-
by-state variations had involved differences over some-
thing—as the majority puts it—“thought of by most people
as essential to the very definition of [marriage] and to
its role and function throughout the history of civilization.”
Ante, at 13. That the Federal Government treated this
fundamental question differently than it treated variations
over consanguinity or minimum age is hardly surprising—
and hardly enough to support a conclusion that the
“principal purpose,” ante, at 22, of the 342 Representa-
2 UNITED STATES v. WINDSOR
ROBERTS, C. J., dissenting
tives and 85 Senators who voted for it, and the President
who signed it, was a bare desire to harm. Nor do the snip-
pets of legislative history and the banal title of the Act
to which the majority points suffice to make such a show-
ing. 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.
But while I disagree with the result to which the major-
ity’s analysis leads it in this case, I think it more important
to point out that its analysis leads no further. The Court
does not have before it, and the logic of its opinion does
not decide, the distinct question whether the States, in the
exercise of their “historic and essential authority to define
the marital relation,” ante, at 18, may continue to utilize
the traditional definition of marriage.
The majority goes out of its way to make this explicit in
the penultimate sentence of its opinion. It states that
“[t]his opinion and its holding are confined to those lawful
marriages,” ante, at 26—referring to same-sex marriages
that a State has already recognized as a result of the local
“community’s considered perspective on the historical
roots of the institution of marriage and its evolving un-
derstanding of the meaning of equality.” Ante, at 20.
JUSTICE SCALIA believes this is a “ ‘bald, unreasoned dis-
claime[r].’ ” Post, at 22. In my view, though, the disclaimer
is a logical and necessary consequence of the argument
the majority has chosen to adopt. The dominant theme
of the majority opinion is that the Federal Government’s
intrusion into an area “central to state domestic relations
law applicable to its residents and citizens” is sufficiently
“unusual” to set off alarm bells. Ante, at 17, 20. I think
the majority goes off course, as I have said, but it is unde-
niable that its judgment is based on federalism.
The majority extensively chronicles DOMA’s departure
from the normal allocation of responsibility between State
Cite as: 570 U. S. ____ (2013) 3
ROBERTS, C. J., dissenting
and Federal Governments, emphasizing that DOMA “re-
jects the long-established precept that the incidents, bene-
fits, and obligations of marriage are uniform for all married
couples within each State.” Ante, at 18. But there is
no such departure when one State adopts or keeps a defi-
nition of marriage that differs from that of its neighbor,
for it is entirely expected that state definitions would
“vary, subject to constitutional guarantees, from one State
to the next.” Ibid. Thus, while “[t]he State’s power in
defining the marital relation is of central relevance” to the
majority’s decision to strike down DOMA here, ibid., that
power will come into play on the other side of the board in
future cases about the constitutionality of state marriage
definitions. So too will the concerns for state diversity and
sovereignty that weigh against DOMA’s constitutionality
in this case. See ante, at 19.
It is not just this central feature of the majority’s analy-
sis that is unique to DOMA, but many considerations on
the periphery as well. For example, the majority focuses
on the legislative history and title of this particular Act,
ante, at 21; those statute-specific considerations will, of
course, be irrelevant in future cases about different stat-
utes. The majority emphasizes that DOMA was a “system-
wide enactment with no identified connection to any
particular area of federal law,” but a State’s definition of
marriage “is the foundation of the State’s broader author-
ity to regulate the subject of domestic relations with re-
spect to the ‘[p]rotection of offspring, property interests,
and the enforcement of marital responsibilities.’ ” Ante, at
22, 17. And the federal decision undermined (in the ma-
jority’s view) the “dignity [already] conferred by the States
in the exercise of their sovereign power,” ante, at 21,
whereas a State’s decision whether to expand the defini-
tion of marriage from its traditional contours involves no
similar concern.
We may in the future have to resolve challenges to state
4 UNITED STATES v. WINDSOR
ROBERTS, C. J., dissenting
marriage definitions affecting same-sex couples. That
issue, however, is not before us in this case, and we hold
today that we lack jurisdiction to consider it in the partic-
ular context of Hollingsworth v. Perry, ante, p. ___. I write
only to highlight the limits of the majority’s holding and
reasoning today, lest its opinion be taken to resolve not
only a question that I believe is not properly before us—
DOMA’s constitutionality—but also a question that all
agree, and the Court explicitly acknowledges, is not at
issue.
Cite as: 570 U. S. ____ (2013) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–307
_________________
UNITED STATES, PETITIONER v. EDITH SCHLAIN
WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE
ESTATE OF THEA CLARA SPYER, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 26, 2013]
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
and with whom THE CHIEF JUSTICE joins as to Part I,
dissenting.
This case is about power in several respects. It is about
the power of our people to govern themselves, and the
power of this Court to pronounce the law. Today’s opinion
aggrandizes the latter, with the predictable consequence of
diminishing the former. We have no power to decide this
case. And even if we did, we have no power under the
Constitution to invalidate this democratically adopted leg-
islation. The Court’s errors on both points spring forth
from the same diseased root: an exalted conception of the
role of this institution in America.
I
A
The Court is eager—hungry—to tell everyone its view of
the legal question at the heart of this case. Standing in
the way is an obstacle, a technicality of little interest to
anyone but the people of We the People, who created it as
a barrier against judges’ intrusion into their lives. They
gave judges, in Article III, only the “judicial Power,” a
power to decide not abstract questions but real, concrete
2 UNITED STATES v. WINDSOR
SCALIA, J., dissenting
“Cases” and “Controversies.” Yet the plaintiff and the Gov-
ernment agree entirely on what should happen in this
lawsuit. They agree that the court below got it right; and
they agreed in the court below that the court below that
one got it right as well. What, then, are we doing here?
The answer lies at the heart of the jurisdictional portion
of today’s opinion, where a single sentence lays bare the
majority’s vision of our role. The Court says that we have
the power to decide this case because if we did not, then
our “primary role in determining the constitutionality of
a law” (at least one that “has inflicted real injury on a
plaintiff ”) would “become only secondary to the President’s.”
Ante, at 12. But wait, the reader wonders—Windsor won
below, and so cured her injury, and the President was glad
to see it. True, says the majority, but judicial review must
march on regardless, lest we “undermine the clear dictate
of the separation-of-powers principle that when an Act of
Congress is alleged to conflict with the Constitution, it is
emphatically the province and duty of the judicial depart-
ment to say what the law is.” Ibid. (internal quotation
marks and brackets omitted).
That is jaw-dropping. It is an assertion of judicial su-
premacy over the people’s Representatives in Congress
and the Executive. It envisions a Supreme Court standing
(or rather enthroned) at the apex of government, empow-
ered to decide all constitutional questions, always and every-
where “primary” in its role.
This image of the Court would have been unrecognizable
to those who wrote and ratified our national charter. They
knew well the dangers of “primary” power, and so created
branches of government that would be “perfectly co-
ordinate by the terms of their common commission,” none
of which branches could “pretend to an exclusive or supe-
rior right of settling the boundaries between their respec-
tive powers.” The Federalist, No. 49, p. 314 (C. Rossiter
ed. 1961) (J. Madison). The people did this to protect
Cite as: 570 U. S. ____ (2013) 3
SCALIA, J., dissenting
themselves. They did it to guard their right to self-rule
against the black-robed supremacy that today’s majority
finds so attractive. So it was that Madison could confi-
dently state, with no fear of contradiction, that there was
nothing of “greater intrinsic value” or “stamped with the
authority of more enlightened patrons of liberty” than a
government of separate and coordinate powers. Id., No.
47, at 301.
For this reason we are quite forbidden to say what the
law is whenever (as today’s opinion asserts) “ ‘an Act of
Congress is alleged to conflict with the Constitution.’ ”
Ante, at 12. 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” is not, as the major-
ity believes, the power “ ‘to say what the law is,’ ” ibid.,
giving the Supreme Court the “primary role in determin-
ing the constitutionality of laws.” The majority must have
in mind one of the foreign constitutions that pronounces
such primacy for its constitutional court and allows that
primacy to be exercised in contexts other than a lawsuit.
See, e.g., Basic Law for the Federal Republic of Germany,
Art. 93. The judicial power as Americans have understood
it (and their English ancestors before them) is the power
to adjudicate, with conclusive effect, disputed govern-
ment claims (civil or criminal) against private persons, and
disputed claims by private persons against the govern-
ment or other private persons. Sometimes (though not
always) the parties before the court disagree not with
regard to the facts of their case (or not only with regard to
the facts) but with regard to the applicable law—in which
event (and only in which event) it becomes the “ ‘province
and duty of the judicial department to say what the law
is.’ ” Ante, at 12.
In other words, declaring the compatibility of state or
federal laws with the Constitution is not only not the
“primary role” of this Court, it is not a separate, free-
4 UNITED STATES v. WINDSOR
SCALIA, J., dissenting
standing role at all. We perform that role incidentally—by
accident, as it were—when that is necessary to resolve the
dispute before us. Then, and only then, does it become
“ ‘the province and duty of the judicial department to say
what the law is.’ ” That is why, in 1793, we politely de-
clined the Washington Administration’s request to “say
what the law is” on a particular treaty matter that was
not the subject of a concrete legal controversy. 3 Corre-
spondence and Public Papers of John Jay 486–489 (H.
Johnston ed. 1893). And that is why, as our opinions have
said, some questions of law will never be presented to this
Court, because there will never be anyone with standing
to bring a lawsuit. See Schlesinger v. Reservists Comm. to
Stop the War, 418 U. S. 208, 227 (1974); United States v.
Richardson, 418 U. S. 166, 179 (1974). As Justice Bran-
deis put it, we cannot “pass upon the constitutionality of
legislation in a friendly, non-adversary, proceeding”; ab-
sent a “ ‘real, earnest and vital controversy between indi-
viduals,’ ” we have neither any work to do nor any power to
do it. Ashwander v. TVA, 297 U. S. 288, 346 (1936) (con-
curring opinion) (quoting Chicago & Grand Trunk R. Co.
v. Wellman, 143 U. S. 339, 345 (1892)). Our authority
begins and ends with the need to adjudge the rights of an
injured party who stands before us seeking redress. Lujan
v. Defenders of Wildlife, 504 U. S. 555, 560 (1992).
That is completely absent here. Windsor’s injury was
cured by the judgment in her favor. And while, in ordi-
nary circumstances, the United States is injured by a
directive to pay a tax refund, this suit is far from ordinary.
Whatever injury the United States has suffered will surely
not be redressed by the action that it, as a litigant, asks us
to take. The final sentence of the Solicitor General’s brief
on the merits reads: “For the foregoing reasons, the judg-
ment of the court of appeals should be affirmed.” Brief for
United States (merits) 54 (emphasis added). That will not
cure the Government’s injury, but carve it into stone. One
Cite as: 570 U. S. ____ (2013) 5
SCALIA, J., dissenting
could spend many fruitless afternoons ransacking our
library for any other petitioner’s brief seeking an affir-
mance 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 provide
relief from the judgment below but to say that that judg-
ment was correct. And the same was true in the Court of
Appeals: Neither party sought to undo the judgment for
Windsor, and so that court should have dismissed the
appeal (just as we should dismiss) for lack of jurisdiction.
Since both parties agreed with the judgment of the Dis-
trict Court for the Southern District of New York, the suit
should have ended there. The further proceedings have
been a contrivance, having no object in mind except to ele-
vate a District Court judgment that has no precedential
effect in other courts, to one that has precedential effect
throughout the Second Circuit, and then (in this Court)
precedential effect throughout the United States.
We have never before agreed to speak—to “say what the
law is”—where there is no controversy before us. 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. The United States reluctantly con-
ceded that at oral argument. See Tr. of Oral Arg. 19–20.
The closest we have ever come to what the Court blesses
today was our opinion in INS v. Chadha, 462 U. S. 919(1983). But in that case, two parties to the litigation
——————
1 For an even more advanced scavenger hunt, one might search the
annals of Anglo-American law for another “Motion to Dismiss” like the
one 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. (Emphasis mine.) Then, having gotten exactly what it
asked for, the United States promptly appealed.
6 UNITED STATES v. WINDSOR
SCALIA, J., dissenting
disagreed with the position of the United States and with
the court below: the House and Senate, which had inter-
vened in the case. Because Chadha concerned the validity
of a mode of congressional action—the one-house legis-
lative veto—the House and Senate were threatened with
destruction of what they claimed to be one of their institu-
tional powers. The Executive choosing not to defend that
power,2 we permitted the House and Senate to intervene.
Nothing like that is present here.
To be sure, the Court in Chadha said that statutory
aggrieved-party status was “not altered by the fact that
the Executive may agree with the holding that the statute
in question is unconstitutional.” Id., at 930–931. But in
a footnote to that statement, the Court acknowledged Arti-
cle III’s separate requirement of a “justiciable case or
controversy,” and stated that this requirement was satis-
fied “because of the presence of the two Houses of Con-
gress as adverse parties.” Id., at 931, n. 6. Later in its
opinion, the Chadha Court remarked that the United
States’ announced intention to enforce the statute also
sufficed to permit judicial review, even absent congres-
sional participation. Id., at 939. That remark is true, as a
description of the judicial review conducted in the Court of
Appeals, where the Houses of Congress had not inter-
——————
2 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 Presiden-
tial powers. There is no justification for the Justice Department’s
abandoning the law in the present case. The majority opinion makes a
point of scolding the President for his “failure to defend the constitu-
tionality of an Act of Congress based on a constitutional theory not yet
established in judicial decisions,” ante, at 12. But the rebuke is tongue-
in-cheek, for the majority gladly gives the President what he wants.
Contrary to all precedent, it decides this case (and even decides it the
way the President wishes) despite his abandonment of the defense and
the consequent absence of a case or controversy.
Cite as: 570 U. S. ____ (2013) 7
SCALIA, J., dissenting
vened. (The case originated in the Court of Appeals, since
it sought review of agency action under 8 U. S. C. §1105a(a)
(1976 ed.).) There, absent a judgment setting aside
the INS order, Chadha faced deportation. This pas-
sage of our opinion seems to be addressing that initial
standing in the Court of Appeals, as indicated by its quo-
tation from the lower court’s opinion, 462 U. S., at 939–
940. But if it was addressing standing to pursue the
appeal, the remark was both the purest dictum (as con-
gressional intervention at that point made the required
adverseness “beyond doubt,” id., at 939), and quite incor-
rect. When a private party has a judicial decree safely in
hand to prevent his injury, additional judicial action re-
quires that a party injured by the decree seek to undo it.
In Chadha, the intervening House and Senate fulfilled
that requirement. Here no one does.
The majority’s discussion of the requirements of Article
III bears no resemblance to our jurisprudence. It accuses
the amicus (appointed to argue against our jurisdiction) of
“elid[ing] the distinction between . . . the jurisdictional
requirements of Article III and the prudential limits on its
exercise.” Ante, at 6. It then proceeds to call the require-
ment of adverseness a “prudential” aspect of standing. Of
standing. That is incomprehensible. A plaintiff (or appel-
lant) can have all the standing in the world—satisfying all
three standing requirements of Lujan that the majority so
carefully quotes, ante, at 7—and yet no Article III contro-
versy may be before the court. Article III requires not just
a plaintiff (or appellant) who has standing to complain
but an opposing party who denies the validity of the com-
plaint. It is not the amicus that has done the eliding of
distinctions, but the majority, calling the quite separate
Article III requirement of adverseness between the parties
an element (which it then pronounces a “prudential” ele-
ment) of standing. The question here is not whether, as
the majority puts it, “the United States retains a stake
8 UNITED STATES v. WINDSOR
SCALIA, J., dissenting
sufficient to support Article III jurisdiction,” ibid. the
question is whether there is any controversy (which re-
quires contradiction) between the United States and Ms.
Windsor. There is not.
I find it wryly amusing that the majority seeks to dis-
miss the requirement of party-adverseness as nothing
more than a “prudential” aspect of the sole Article III
requirement of standing. (Relegating a jurisdictional re-
quirement to “prudential” status is a wondrous device,
enabling courts to ignore the requirement whenever they
believe it “prudent”—which is to say, a good idea.) Half a
century ago, a Court similarly bent upon announcing its
view regarding the constitutionality of a federal statute
achieved that goal by effecting a remarkably similar but
completely opposite distortion of the principles limiting our
jurisdiction. The Court’s notorious opinion in Flast v.
Cohen, 392 U. S. 83, 98–101 (1968), held that standing
was merely an element (which it pronounced to be a
“prudential” element) of the sole Article III requirement
of adverseness. We have been living with the chaos created
by that power-grabbing decision ever since, see Hein v.
Freedom From Religion Foundation, Inc., 551 U. S. 587(2007), as we will have to live with the chaos created by
this one.
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. In Deposit Guaranty Nat. Bank v. Roper, 445
U. S. 326 (1980), the District Court had entered judgment
in the individual plaintiff ’s favor based on the defendant
bank’s offer to pay the full amount claimed. The plaintiff,
however, sought to appeal the District Court’s denial of
class certification under Federal Rule of Civil Procedure
23. There was a continuing dispute between the parties
concerning the issue raised on appeal. The same is true of
the other case cited by the majority, Camreta v. Greene,
Cite as: 570 U. S. ____ (2013) 9
SCALIA, J., dissenting
563 U. S. ___ (2011). There the District Court found that
the defendant state officers had violated the Fourth
Amendment, but rendered judgment in their favor because
they were entitled to official immunity, application of the
Fourth Amendment to their conduct not having been clear
at the time of violation. 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.
The “prudential” discretion to which both those cases refer
was the discretion to deny an appeal even when a live
controversy exists—not the discretion to grant one when it
does not. The majority can cite no case in which this
Court entertained an appeal in which both parties urged
us to affirm the judgment below. And that is because the
existence of a controversy is not a “prudential” require-
ment that we have invented, but an essential element of
an Article III case or controversy. The majority’s notion
that a case between friendly parties can be entertained so
long as “adversarial presentation of the issues is assured
by the participation of amici curiae prepared to defend
with vigor” the other side of the issue, ante, at 10, effects a
breathtaking revolution in our Article III jurisprudence.
It may be argued that if what we say is true some Presi-
dential determinations that statutes are unconstitutional
will not be subject to our review. That is as it should
be, when both the President and the plaintiff agree that
the statute is unconstitutional. Where the Executive is en-
forcing an unconstitutional law, suit will of course lie; but
if, in that suit, the Executive admits the unconstitution-
ality of the law, the litigation should end in an order or a
consent decree enjoining enforcement. This suit saw the
light of day only because the President enforced the Act
(and thus gave Windsor standing to sue) even though he
believed it unconstitutional. He could have equally chosen
(more appropriately, some would say) neither to enforce
10 UNITED STATES v. WINDSOR
SCALIA, J., dissenting
nor to defend the statute he believed to be unconstitu-
tional, see Presidential Authority to Decline to Execute Un-
constitutional Statutes, 18 Op. Off. Legal Counsel 199
(Nov. 2, 1994)—in which event Windsor would not have
been injured, the District Court could not have refereed
this friendly scrimmage, and the Executive’s determina-
tion 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 impeach-
ment) of compelling the President to enforce the laws it
has written. Or the President could have evaded presen-
tation of the constitutional issue to this Court simply by
declining to appeal the District Court and Court of Ap-
peals dispositions he agreed with. Be sure of this much: If
a President wants to insulate his judgment of unconstitu-
tionality from our review, he can. What the views urged
in this dissent produce is not insulation from judicial
review but insulation from Executive contrivance.
The majority brandishes the famous sentence from
Marbury v. Madison, 1 Cranch 137, 177 (1803) that “[i]t is
emphatically the province and duty of the judicial depart-
ment to say what the law is.” Ante, at 12 (internal quota-
tion marks omitted). But that sentence neither says nor
implies that it is always the province and duty of the
Court to say what the law is—much less that its responsi-
bility in that regard is a “primary” one. 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.” 1 Cranch, at 177 (em-
phasis added). Only when a “particular case” is before
us—that is, a controversy that it is our business to resolve
under Article III—do we have the province and duty to
pronounce the law. For the views of our early Court more
Cite as: 570 U. S. ____ (2013) 11
SCALIA, J., dissenting
precisely addressing the question before us here, the ma-
jority ought instead to have consulted the opinion of Chief
Justice Taney in Lord v. Veazie, 8 How. 251 (1850):
“The objection in the case before us is . . . that the
plaintiff and defendant have the same interest, and
that interest adverse and in conflict with the interest
of third persons, whose rights would be seriously af-
fected if the question of law was decided in the man-
ner that both of the parties to this suit desire it to be.
“A judgment entered under such circumstances, and
for such purposes, is a mere form. The whole proceed-
ing was in contempt of the court, and highly repre-
hensible . . . . A judgment in form, thus procured, in
the eye of the law is no judgment of the court. It is a
nullity, and no writ of error will lie upon it. This writ
is, therefore, dismissed.” Id., at 255–256.
There is, in the words of Marbury, no “necessity [to] ex-
pound and interpret” the law in this case; just a desire
to place this Court at the center of the Nation’s life.
1 Cranch, at 177.
B
A few words in response to the theory of jurisdiction set
forth in JUSTICE ALITO’s dissent: Though less far reach-
ing in its consequences than the majority’s conversion of
constitutionally required adverseness into a discretionary
element of standing, the theory of that dissent similarly
elevates the Court to the “primary” determiner of constitu-
tional questions involving the separation of powers, and,
to boot, increases the power of the most dangerous branch:
the “legislative department,” which by its nature “draw[s]
all power into its impetuous vortex.” The Federalist, No.
48, at 309 (J. Madison). Heretofore in our national his-
tory, the President’s failure to “take Care that the Laws
be faithfully executed,” U. S. Const., Art. II, §3, could only be
12 UNITED STATES v. WINDSOR
SCALIA, J., dissenting
brought before a judicial tribunal by someone whose
concrete interests were harmed by that alleged failure.
JUSTICE ALITO would create a system in which Congress
can hale the Executive before the courts not only to vindi-
cate 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 par-
ties,” and in which “[t]he political question that [the judge]
must resolve is linked to the interest” of private litigants.
A. de Tocqueville, Democracy in America 97 (H. Mansfield
——————
3 JUSTICE ALITO attempts to limit his argument by claiming that Con-
gress is injured (and can therefore appeal) when its statute is held
unconstitutional without Presidential defense, but is not injured when
its statute is held unconstitutional despite Presidential defense. I do
not understand that line. The injury to Congress is the same whether
the President has defended the statute or not. And if the injury is
threatened, why should Congress not be able to participate in the suit
from the beginning, just as the President can? And if having a statute
declared unconstitutional (and therefore inoperative) by a court is an
injury, why is it not an injury when a statute is declared unconstitu-
tional by the President and rendered inoperative by his consequent
failure to enforce it? 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] func-
tion,” as JUSTICE ALITO puts it, post, at 4—it should make no difference
which of the other two branches inflicts it, and whether the Constitu-
tion is the pretext. A principled and predictable system of jurispru-
dence cannot rest upon a shifting concept of injury, designed to support
standing when we would like it. If this Court agreed with JUSTICE
ALITO’s distinction, its opinion in Raines v. Byrd, 521 U. S. 811 (1997),
which involved an original suit by Members of Congress challenging an
assertedly unconstitutional law, would have been written quite differ-
ently; and JUSTICE ALITO’s distinguishing of that case on grounds quite
irrelevant to his theory of standing would have been unnecessary.
Cite as: 570 U. S. ____ (2013) 13
SCALIA, J., dissenting
& D. Winthrop eds. 2000). That would be replaced by a
system in which Congress and the Executive can pop
immediately into court, in their institutional capacity,
whenever the President refuses to implement a statute he
believes to be unconstitutional, and whenever he imple-
ments a law in a manner that is not to Congress’s liking.
JUSTICE ALITO’s notion of standing will likewise enor-
mously shrink the area to which “judicial censure, exer-
cised 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 implementa-
tion of welfare programs is too generous—a failure that no
other litigant would have standing to complain about.
Moreover, as we indicated in Raines v. Byrd, 521 U. S.
811, 828 (1997), 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 “in-
jures” the Executive’s power to administer—or perhaps for
its protracted failure to act on one of his nominations. The
opportunities for dragging the courts into disputes hith-
erto left for political resolution are endless.
JUSTICE ALITO’s dissent is correct that Raines did not
formally decide this issue, but its reasoning does. The
opinion spends three pages discussing famous, decades-
long disputes between the President and Congress—
regarding congressional power to forbid the Presidential
removal of executive officers, regarding the legislative
veto, regarding congressional appointment of executive
officers, and regarding the pocket veto—that would
surely have been promptly resolved by a Congress-vs.-the-
President lawsuit if the impairment of a branch’s powers
alone conferred standing to commence litigation. But it
does not, and never has; the “enormous power that the
judiciary would acquire” from the ability to adjudicate
such suits “would have made a mockery of [Hamilton’s]
14 UNITED STATES v. WINDSOR
SCALIA, J., dissenting
quotation of Montesquieu to the effect that ‘of the three
powers above mentioned . . . the JUDICIARY is next to
nothing.’ ” Barnes v. Kline, 759 F. 2d 21, 58 (CADC 1985)
(Bork, J., dissenting) (quoting The Federalist No. 78 (A.
Hamilton)).
To be sure, if Congress cannot invoke our authority in
the way that JUSTICE ALITO proposes, then its only re-
course is to confront the President directly. Unimaginable
evil this is not. Our system is designed for confrontation.
That is what “[a]mbition . . . counteract[ing] ambition,”
The Federalist, No. 51, at 322 (J. Madison), is all about. If
majorities in both Houses of Congress care enough about
the matter, they have available innumerable ways to com-
pel executive action without a lawsuit—from refusing
to confirm Presidential appointees to the elimination of
funding. (Nothing says “enforce the Act” quite like “. . . or
you will have money for little else.”) But the condition is
crucial; Congress must care enough to act against the
President itself, not merely enough to instruct its lawyers
to ask us to do so. Placing the Constitution’s entirely
anticipated political arm wrestling into permanent judicial
receivership does not do the system a favor. And by the
way, if the President loses the lawsuit but does not faith-
fully implement the Court’s decree, just as he did not
faithfully implement Congress’s statute, what then? Only
Congress can bring him to heel by . . . what do you think?
Yes: a direct confrontation with the President.
II
For the reasons above, I think that this Court has, and
the Court of Appeals had, no power to decide this suit. We
should vacate the decision below and remand to the Court
of Appeals for the Second Circuit, with instructions to
dismiss the appeal. Given that the majority has volun-
teered its view of the merits, however, I proceed to discuss
that as well.
Cite as: 570 U. S. ____ (2013) 15
SCALIA, J., dissenting
A
There are many remarkable things about the majority’s
merits holding. The first is how rootless and shifting its
justifications are. For example, the opinion starts with
seven full pages about the traditional power of States to
define domestic relations—initially fooling many readers,
I am sure, into thinking that this is a federalism opinion.
But we are eventually told that “it is unnecessary to de-
cide whether this federal intrusion on state power is a vio-
lation of the Constitution,” and that “[t]he State’s power
in defining the marital relation is of central relevance
in this case quite apart from principles of federalism” be-
cause “the State’s decision to give this class of persons
the right to marry conferred upon them a dignity and
status of immense import.” Ante, at 18. But no one ques-
tions 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 accept-
ing state definitions of marriage” continue. See, e.g., ante,
at 20. What to make of this? The opinion never explains.
My guess is that the majority, while reluctant to suggest
that defining the meaning of “marriage” in federal stat-
utes is unsupported by any of the Federal Government’s
enumerated powers,4 nonetheless needs some rhetorical
basis to support its pretense that today’s prohibition of
——————
4 Such a suggestion would be impossible, given the Federal Govern-
ment’s long history of making pronouncements regarding marriage—for
example, conditioning Utah’s entry into the Union upon its prohibition
of polygamy. See Act of July 16, 1894, ch. 138, §3, 28 Stat. 108 (“The
constitution [of Utah]” must provide “perfect toleration of religious
sentiment,” “Provided, That polygamous or plural marriages are
forever prohibited”).
16 UNITED STATES v. WINDSOR
SCALIA, J., dissenting
laws excluding same-sex marriage is confined to the Fed-
eral Government (leaving the second, state-law shoe to be
dropped later, maybe next Term). But I am only guessing.
Equally perplexing are the opinion’s references to “the
Constitution’s guarantee of equality.” Ibid. Near the end
of the opinion, we are told that although the “equal protec-
tion guarantee of the Fourteenth Amendment makes [the]
Fifth Amendment [due process] right all the more specific
and all the better understood and preserved”—what can
that mean?—“the Fifth Amendment itself withdraws from
Government the power to degrade or demean in the way
this law does.” Ante, at 25. The only possible interpreta-
tion of this statement is that the Equal Protection Clause,
even the Equal Protection Clause as incorporated in the
Due Process Clause, is not the basis for today’s holding.
But the portion of the majority opinion that explains why
DOMA is unconstitutional (Part IV) begins by citing Bol-
ling v. Sharpe, 347 U. S. 497 (1954), Department of Agri-
culture v. Moreno, 413 U. S. 528 (1973), and Romer v.
Evans, 517 U. S. 620 (1996)—all of which are equal-
protection cases.5 And those three cases are the only
authorities that the Court cites in Part IV about the Con-
stitution’s meaning, except for its citation of Lawrence v.
Texas, 539 U. S. 558 (2003) (not an equal-protection case)
to support its passing assertion that the Constitution
protects the “moral and sexual choices” of same-sex cou-
ples, ante, at 23.
Moreover, if this is meant to be an equal-protection
opinion, it is a confusing one. The opinion does not resolve
and indeed does not even mention what had been the
——————
5 Since the Equal Protection Clause technically applies only against
the States, see U. S. Const., Amdt. 14, Bolling and Moreno, dealing
with federal action, relied upon “the equal protection component of the
Due Process Clause of the Fifth Amendment,” Moreno, 413 U. S., at
533.
Cite as: 570 U. S. ____ (2013) 17
SCALIA, J., dissenting
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 ra-
tionality. That is the issue that divided the parties and
the court below, compare Brief for Respondent Bipartisan
Legal Advisory Group of U. S. House of Representatives
(merits) 24–28 (no), with Brief for Respondent Windsor
(merits) 17–31 and Brief for United States (merits) 18–36
(yes); and compare 699 F. 3d 169, 180–185 (CA2 2012)
(yes), with id., at 208–211 (Straub, J., dissenting in part
and concurring in part) (no). In accord with my previously
expressed skepticism about the Court’s “tiers of scrutiny”
approach, I would review this classification only for its
rationality. See United States v. Virginia, 518 U. S. 515,
567–570 (1996) (SCALIA, J., dissenting). As nearly as I can
tell, the Court agrees with that; its opinion does not apply
strict scrutiny, and its central propositions are taken from
rational-basis cases like Moreno. But the Court certainly
does not apply anything that resembles that deferential
framework. See Heller v. Doe, 509 U. S. 312, 320 (1993)
(a classification “‘must be upheld . . . if there is any reason-
ably conceivable state of facts’ ” that could justify it).
The majority opinion need not get into the strict-vs.-
rational-basis scrutiny question, and need not justify its
holding under either, because it says that DOMA is un-
constitutional as “a deprivation of the liberty of the person
protected by the Fifth Amendment of the Constitution,”
ante, at 25; that it violates “basic due process” principles,
ante, at 20; and that it inflicts an “injury and indignity” of
a kind that denies “an essential part of the liberty pro-
tected by the Fifth Amendment,” ante, at 19. The majority
never utters the dread words “substantive due process,”
perhaps sensing the disrepute into which that doctrine
has fallen, but that is what those statements mean. Yet
the opinion does not argue that same-sex marriage is
“deeply rooted in this Nation’s history and tradition,”
18 UNITED STATES v. WINDSOR
SCALIA, J., dissenting
Washington v. Glucksberg, 521 U. S. 702, 720–721
(1997), a claim that would of course be quite absurd. 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.’ ” Id., at 721(quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937)).
Some might conclude that this loaf could have used a
while longer in the oven. But that would be wrong; it is
already overcooked. The most expert care in preparation
cannot redeem a bad recipe. The sum of all the Court’s
nonspecific hand-waving is that this law is invalid (maybe
on equal-protection grounds, maybe on substantive-due-
process grounds, and perhaps with some amorphous fed-
eralism component playing a role) because it is motivated
by a “ ‘bare . . . desire to harm’ ” couples in same-sex mar-
riages. Ante, at 20. It is this proposition with which I will
therefore engage.
B
As I have observed before, the Constitution does not
forbid the government to enforce traditional moral and
sexual norms. See Lawrence v. Texas, 539 U. S. 558, 599
(2003) (SCALIA, J., dissenting). I will not swell the U. S.
Reports with restatements of that point. It is enough to
say that the Constitution neither requires nor forbids our
society to approve of same-sex marriage, much as it nei-
ther requires nor forbids us to approve of no-fault divorce,
polygamy, or the consumption of alcohol.
However, even setting aside traditional moral disap-
proval of same-sex marriage (or indeed same-sex sex),
there are many perfectly valid—indeed, downright bor-
ing—justifying rationales for this legislation. Their exist-
ence ought to be the end of this case. For they give the lie
to the Court’s conclusion that only those with hateful
hearts could have voted “aye” on this Act. And more
importantly, they serve to make the contents of the legis-
Cite as: 570 U. S. ____ (2013) 19
SCALIA, J., dissenting
lators’ hearts quite irrelevant: “It is a familiar principle of
constitutional law that this Court will not strike down an
otherwise constitutional statute on the basis of an alleged
illicit legislative motive.” United States v. O’Brien, 391
U. S. 367, 383 (1968). Or at least it was a familiar princi-
ple. By holding to the contrary, the majority has declared
open season on any law that (in the opinion of the law’s
opponents and any panel of like-minded federal judges)
can be characterized as mean-spirited.
The majority concludes that the only motive for this Act
was the “bare . . . desire to harm a politically unpopular
group.” Ante, at 20. Bear in mind that the object of
this condemnation is not the legislature of some once-
Confederate Southern state (familiar objects of the Court’s
scorn, see, e.g., Edwards v. Aguillard, 482 U. S. 578(1987)), but our respected coordinate branches, the Con-
gress and Presidency of the United States. Laying such a
charge against them should require the most extraordi-
nary evidence, and I would have thought that every
attempt would be made to indulge a more anodyne expla-
nation for the statute. The majority does the opposite—
affirmatively concealing from the reader the arguments
that exist in justification. It makes only a passing men-
tion of the “arguments put forward” by the Act’s defenders,
and does not even trouble to paraphrase or describe them.
See ante, at 21. I imagine that this is because it is harder
to maintain the illusion of the Act’s supporters as unhinged
members of a wild-eyed lynch mob when one first describes
their views as they see them.
To choose just one of these defenders’ arguments,
DOMA avoids difficult choice-of-law issues that will now
arise absent a uniform federal definition of marriage. See,
e.g., Baude, Beyond DOMA: Choice of State Law in Fed-
eral Statutes, 64 Stan. L. Rev. 1371 (2012). Imagine a pair
of women who marry in Albany and then move to Ala-
bama, which does not “recognize as valid any marriage of
20 UNITED STATES v. WINDSOR
SCALIA, J., dissenting
parties of the same sex.” Ala. Code §30–1–19(e) (2011).
When the couple files their next federal tax return, may it
be a joint one? 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)?
(Does the answer depend on whether they were just visit-
ing in Albany?) Are these questions to be answered as a
matter of federal common law, or perhaps by borrowing a
State’s choice-of-law rules? If so, which State’s? And what
about States where the status of an out-of-state same-sex
marriage is an unsettled question under local law? See
Godfrey v. Spano, 13 N. Y. 3d 358, 920 N. E. 2d 328(2009). DOMA avoided all of this uncertainty by speci-
fying which marriages would be recognized for federal
purposes. That is a classic purpose for a definitional
provision.
Further, DOMA preserves the intended effects of prior
legislation against then-unforeseen changes in circum-
stance. When Congress provided (for example) that a
special estate-tax exemption would exist for spouses, this
exemption reached only opposite-sex spouses—those being
the only sort that were recognized in any State at the time
of DOMA’s passage. When it became clear that changes in
state law might one day alter that balance, DOMA’s defi-
nitional section was enacted to ensure that state-level
experimentation did not automatically alter the basic
operation of federal law, unless and until Congress made
the further judgment to do so on its own. That is not
animus—just stabilizing prudence. Congress has hardly
demonstrated itself unwilling to make such further, revis-
ing judgments upon due deliberation. See, e.g., Don’t Ask,
Don’t Tell Repeal Act of 2010, 124 Stat. 3515.
The Court mentions none of this. Instead, it accuses the
Congress that enacted this law and the President who
signed it of something much worse than, for example,
having acted in excess of enumerated federal powers—or
Cite as: 570 U. S. ____ (2013) 21
SCALIA, J., dissenting
even having drawn distinctions that prove to be irrational.
Those legal errors may be made in good faith, errors
though they are. But the majority says that the support-
ers of this Act acted with malice—with the “purpose” (ante,
at 25) “to disparage and to injure” same-sex couples. It
says that the motivation for DOMA was to “demean,”
ibid.; to “impose inequality,” ante, at 22; to “impose . . . a
stigma,” ante, at 21; to deny people “equal dignity,” ibid.;
to brand gay people as “unworthy,” ante, at 23; and to
“humiliat[e]” their children, ibid. (emphasis added).
I am sure these accusations are quite untrue. To be
sure (as the majority points out), the legislation is called
the Defense of Marriage Act. 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 con-
demn, demean, or humiliate other constitutions. To hurl
such accusations so casually demeans this institution. In
the majority’s judgment, any resistance to its holding is
beyond the pale of reasoned disagreement. To question its
high-handed invalidation of a presumptively valid statute
is to act (the majority is sure) with the purpose to “dis-
parage,” ”injure,” “degrade,” ”demean,” and “humiliate” our
fellow human beings, our fellow citizens, who are homo-
sexual. All that, simply for supporting an Act that did
no more than codify an aspect of marriage that had been
unquestioned in our society for most of its existence—
indeed, had been unquestioned in virtually all societies for
virtually all of human history. It is one thing for a society
to elect change; it is another for a court of law to impose
change by adjudging those who oppose it hostes humani
generis, enemies of the human race.
* * *
The penultimate sentence of the majority’s opinion is a
naked declaration that “[t]his opinion and its holding are
22 UNITED STATES v. WINDSOR
SCALIA, J., dissenting
confined” to those couples “joined in same-sex marriages
made lawful by the State.” Ante, at 26, 25. I have heard
such “bald, unreasoned disclaimer[s]” before. Lawrence,
539 U. S., at 604. When the Court declared a constitu-
tional right to homosexual sodomy, we were assured that
the case had nothing, nothing at all to do with “whether
the government must give formal recognition to any rela-
tionship that homosexual persons seek to enter.” Id., at
578. Now we are told that DOMA is invalid because it
“demeans the couple, whose moral and sexual choices the
Constitution protects,” ante, at 23—with an accompanying
citation of Lawrence. It takes real cheek for today’s major-
ity to assure us, as it is going out the door, that a constitu-
tional requirement to give formal recognition to same-sex
marriage is not at issue here—when what has preceded
that assurance is a lecture on how superior the majority’s
moral judgment in favor of same-sex marriage is to the
Congress’s hateful moral judgment against it. I promise
you this: The only thing that will “confine” the Court’s
holding is its sense of what it can get away with.
I do not mean to suggest disagreement with THE CHIEF
JUSTICE’s view, ante, p. 2–4 (dissenting opinion), that
lower federal courts and state courts can distinguish
today’s case when the issue before them is state denial
of marital status to same-sex couples—or even that this
Court could theoretically do so. Lord, an opinion with such
scatter-shot rationales as this one (federalism noises
among them) can be distinguished in many ways. And
deserves to be. State and lower federal courts should take
the Court at its word and distinguish away.
In my opinion, however, the view that this Court will
take of state prohibition of same-sex marriage is indicated
beyond mistaking by today’s opinion. As I have said, the
real rationale of today’s opinion, whatever disappearing
trail of its legalistic argle-bargle one chooses to follow, is
that DOMA is motivated by “ ‘bare . . . desire to harm’ ”
Cite as: 570 U. S. ____ (2013) 23
SCALIA, J., dissenting
couples in same-sex marriages. Supra, at 18. How easy it
is, indeed how inevitable, to reach the same conclusion
with regard to state laws denying same-sex couples mari-
tal status. Consider how easy (inevitable) it is to make the
following substitutions in a passage from today’s opinion
ante, at 22:
“DOMA’s This state law’s principal effect is to identify
a subset of state-sanctioned marriages constitution-
ally protected sexual relationships, see Lawrence, and
make them unequal. The principal purpose is to im-
pose inequality, not for other reasons like govern-
mental efficiency. Responsibilities, as well as rights,
enhance the dignity and integrity of the person. And
DOMA this state law contrives to deprive some cou-
ples married under the laws of their State enjoying
constitutionally protected sexual relationships, but not
other couples, of both rights and responsibilities.”
Or try this passage, from ante, at 22–23:
“[DOMA] This state law tells those couples, and all
the world, that their otherwise valid marriages rela-
tionships are unworthy of federal state recognition.
This places same-sex couples in an unstable position
of being in a second-tier marriage relationship. The
differentiation demeans the couple, whose moral
and sexual choices the Constitution protects, see
Lawrence, . . . .”
Or this, from ante, at 23—which does not even require
alteration, except as to the invented number:
“And it humiliates tens of thousands of children now
being raised by same-sex couples. The law in question
makes it even more difficult for the children to under-
stand the integrity and closeness of their own family
and its concord with other families in their commu-
nity and in their daily lives.”
24 UNITED STATES v. WINDSOR
SCALIA, J., dissenting
Similarly transposable passages—deliberately transpos-
able, I think—abound. 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 dig-
nity” in the first place. Ante, at 26. As far as this Court is
concerned, no one should be fooled; it is just a matter of
listening and waiting for the other shoe.
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 lan-
guage like that, as the majority well knows. That is why
the language is there. The result will be a judicial distor-
tion of our society’s debate over marriage—a debate that
can seem in need of our clumsy “help” only to a member of
this institution.
As to that debate: Few public controversies touch an
institution so central to the lives of so many, and few
inspire such attendant passion by good people on all sides.
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. Victories in one place
Cite as: 570 U. S. ____ (2013) 25
SCALIA, J., dissenting
for some, see North Carolina Const., Amdt. 1 (providing
that “[m]arriage between one man and one woman is the
only domestic legal union that shall be valid or recognized
in this State”) (approved by a popular vote, 61% to 39%
on May 8, 2012),6 are offset by victories in other places for
others, see Maryland Question 6 (establishing “that Mary-
land’s civil marriage laws allow gay and lesbian couples to
obtain a civil marriage license”) (approved by a popular
vote, 52% to 48%, on November 6, 2012).7 Even in a sin-
gle State, the question has come out differently on differ-
ent occasions. Compare Maine Question 1 (permitting “the
State of Maine to issue marriage licenses to same-sex
couples”) (approved by a popular vote, 53% to 47%, on
November 6, 2012)8 with Maine Question 1 (rejecting “the
new law that lets same-sex couples marry”) (approved by a
popular vote, 53% to 47%, on November 3, 2009).9
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. A reminder that dis-
agreement over something so fundamental as marriage
can still be politically legitimate would have been a fit
task for what in earlier times was called the judicial tem-
perament. We might have covered ourselves with honor
today, by promising all sides of this debate that it was
——————
6 North Carolina State Board of Elections, Official Results: Primary
Election of May 8, 2012, Constitutional Amendment.
7 Maryland State Board of Elections, Official 2012 Presidential Gen-
eral Election Results for All State Questions, Question 06.
8 Maine Bureau of Elections, Nov. 3, 2009, Referendum Tabulation
(Question 1).
9 Maine Bureau of Elections, Nov. 6, 2012, Referendum Election
Tabulations (Question 1).
26 UNITED STATES v. WINDSOR
SCALIA, J., dissenting
theirs to settle and that we would respect their resolution.
We might have let the People decide.
But that the majority will not do. 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.
But the Court has cheated both sides, robbing the winners
of an honest victory, and the losers of the peace that
comes from a fair defeat. We owed both of them better.
I dissent.
Cite as: 570 U. S. ____ (2013) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–307
_________________
UNITED STATES, PETITIONER v. EDITH SCHLAIN
WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE
ESTATE OF THEA CLARA SPYER, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 26, 2013]
JUSTICE ALITO, with whom JUSTICE THOMAS joins as to
Parts II and III, dissenting.
Our Nation is engaged in a heated debate about same-
sex marriage. That debate is, at bottom, about the nature
of the institution of marriage. Respondent Edith Windsor,
supported by the United States, asks this Court to inter-
vene in that debate, and although she couches her argu-
ment 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. The Constitution, however, does not dictate
that choice. It leaves the choice to the people, acting
through their elected representatives at both the federal
and state levels. I would therefore hold that Congress did
not violate Windsor’s constitutional rights by enacting §3
of the Defense of Marriage Act (DOMA), 110 Stat. 2419,
which defines the meaning of marriage under federal
statutes that either confer upon married persons cer-
tain federal benefits or impose upon them certain federal
obligations.
I
I turn first to the question of standing. In my view, the
2 UNITED STATES v. WINDSOR
ALITO, J., dissenting
United States clearly is not a proper petitioner in this
case. The United States does not ask us to overturn the
judgment of the court below or to alter that judgment in
any way. Quite to the contrary, the United States argues
emphatically in favor of the correctness of that judgment.
We have never before reviewed a decision at the sole
behest of a party that took such a position, and to do so
would be to render an advisory opinion, in violation of
Article III’s dictates. For the reasons given in JUSTICE
SCALIA’s dissent, I do not find the Court’s arguments to
the contrary to be persuasive.
Whether the Bipartisan Legal Advisory Group of the
House of Representatives (BLAG) has standing to
petition is a much more difficult question. It is also a signifi-
cantly closer question than whether the intervenors in Hol­
lingsworth v. Perry, ante, p. ___ —which the Court also
decides today—have standing to appeal. It is remarkable
that the Court has simultaneously decided that the United
States, which “receive[d] all that [it] ha[d] sought” below,
Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326, 333
(1980), is a proper petitioner in this case but that the
intervenors in Hollingsworth, who represent the party
that lost in the lower court, are not. In my view, both the
Hollingsworth intervenors and BLAG have standing.1
——————
1 Our precedents make clear that, in order to support our jurisdic-
tion, BLAG must demonstrate that it had Article III standing in its own
right, quite apart from its status as an intervenor. See Diamond v.
Charles, 476 U. S. 54, 68 (1986) (“Although intervenors are considered
parties entitled, among other things, to seek review by this Court, an
intervenor’s right to continue a suit in the absence of the party on
whose side intervention was permitted is contingent upon a showing by
the intervenor that he fulfills the requirements of Art. III” (citation
omitted)); Arizonans for Official English v. Arizona, 520 U. S. 43, 64
(1997) (“Standing to defend on appeal in the place of an original de-
fendant, no less than standing to sue, demands that the litigant possess
a direct stake in the outcome” (internal quotation marks omitted)); id.,Cite as: 570 U. S. ____ (2013) 3
ALITO, J., dissenting
A party invoking the Court’s authority has a sufficient
stake to permit it to appeal when it has “ ‘suffered an
injury in fact’ that is caused by ‘the conduct complained
of ’ and that ‘will be redressed by a favorable decision.’ ”
Camreta v. Greene, 563 U. S. ___, ___ (2011) (slip op., at 5)
(quoting Lujan v. Defenders of Wildlife, 504 U. S. 555,
560–561 (1992)). In the present case, the House of Repre-
sentatives, which has authorized BLAG to represent its
interests in this matter,2 suffered just such an injury.
In INS v. Chadha, 462 U. S. 919 (1983), the Court held
that the two Houses of Congress were “proper parties” to
file a petition in defense of the constitutionality of the
one-house veto statute, id., at 930, n. 5 (internal quota-
tion marks omitted). Accordingly, the Court granted and
decided petitions by both the Senate and the House, in
addition to the Executive’s petition. Id., at 919, n. *. That
the two Houses had standing to petition is not surprising:
The Court of Appeals’ decision in Chadha, by holding the
one-house veto to be unconstitutional, had limited Con-
gress’ power to legislate. In discussing Article III stand-
ing, the Court suggested that Congress suffered a similar
injury whenever federal legislation it had passed was
struck down, noting that it had “long held that Congress is
the proper party to defend the validity of a statute when
an agency of government, as a defendant charged with
enforcing the statute, agrees with plaintiffs that the stat-
ute is inapplicable or unconstitutional.” Id., at 940.
The United States attempts to distinguish Chadha on
——————
at 65 (“An intervenor cannot step into the shoes of the original party
unless the intervenor independently fulfills the requirements of Article
III” (internal quotation marks omitted)).
2 H. Res. 5, 113th Cong., 1st Sess., §4(a)(1)(B) (2013) (“[BLAG] con-
tinues to speak for, and articulates the institutional position of, the
House in all litigation matters in which it appears, including in Wind-
sor v. United States”).
4 UNITED STATES v. WINDSOR
ALITO, J., dissenting
the ground that it “involved an unusual statute that vested
the House and the Senate themselves each with special
procedural rights—namely, the right effectively to veto
Executive action.” Brief for United States (jurisdiction)
36. But that is a distinction without a difference: just as
the Court of Appeals decision that the Chadha Court
affirmed impaired Congress’ power by striking down the
one-house veto, so the Second Circuit’s decision here im-
pairs Congress’ legislative power by striking down an Act
of Congress. The United States has not explained why the
fact that the impairment at issue in Chadha was “special”
or “procedural” has any relevance to whether Congress
suffered an injury. Indeed, because legislating is Con-
gress’ central function, any impairment of that function is
a more grievous injury than the impairment of a proce-
dural add-on.
The Court’s decision in Coleman v. Miller, 307 U. S. 433(1939), bolsters this conclusion. In Coleman, we held that
a group of state senators had standing to challenge a lower
court decision approving the procedures used to ratify
an amendment to the Federal Constitution. We reasoned
that the senators’ votes—which would otherwise have
carried the day—were nullified by that action. See id., at
438 (“Here, the plaintiffs include twenty senators, whose
votes against ratification have been overridden and virtu-
ally held for naught although if they are right in their
contentions their votes would have been sufficient to
defeat ratification. We think that these senators have a
plain, direct and adequate interest in maintaining the ef-
fectiveness of their votes”); id., at 446 (“[W]e find no
departure from principle in recognizing in the instant
case that at least the twenty senators whose votes, if their
contention were sustained, would have been sufficient to
defeat the resolution ratifying the proposed constitutional
amendment, have an interest in the controversy which,
treated by the state court as a basis for entertaining and
Cite as: 570 U. S. ____ (2013) 5
ALITO, J., dissenting
deciding the federal questions, is sufficient to give the
Court jurisdiction to review that decision”). By striking
down §3 of DOMA as unconstitutional, the Second Circuit
effectively “held for naught” an Act of Congress. Just as
the state-senator-petitioners in Coleman were necessary
parties to the amendment’s ratification, the House of
Representatives was a necessary party to DOMA’s pas-
sage; indeed, the House’s vote would have been sufficient
to prevent DOMA’s repeal if the Court had not chosen to
execute that repeal judicially.
Both the United States and the Court-appointed amicus
err in arguing that Raines v. Byrd, 521 U. S. 811 (1997), is
to the contrary. In that case, the Court held that Mem-
bers of Congress who had voted “nay” to the Line Item
Veto Act did not have standing to challenge that statute
in federal court. Raines is inapposite for two reasons.
First, Raines dealt with individual Members of Congress
and specifically pointed to the individual Members’ lack
of institutional endorsement as a sign of their standing
problem: “We attach some importance to the fact that
appellees have not been authorized to represent their
respective Houses of Congress in this action, and indeed
both Houses actively oppose their suit.” Id., at 829; see
also ibid., n. 10 (citing cases to the effect that “members of
collegial bodies do not have standing to perfect an appeal
the body itself has declined to take” (internal quotation
marks omitted)).
Second, the Members in Raines—unlike the state sena-
tors in Coleman—were not the pivotal figures whose votes
would have caused the Act to fail absent some challenged
action. Indeed, it is telling that Raines characterized
Coleman as standing “for the proposition that legislators
whose votes would have been sufficient to defeat (or enact)
a specific legislative Act have standing to sue if that legis-
lative action goes into effect (or does not go into effect), on
the ground that their votes have been completely nulli-
6 UNITED STATES v. WINDSOR
ALITO, J., dissenting
fied.” 521 U. S., at 823. Here, by contrast, passage by the
House was needed for DOMA to become law. U. S. Const.,
Art. I, §7 (bicameralism and presentment requirements for
legislation).
I appreciate the argument that the Constitution confers
on the President alone the authority to defend federal law
in litigation, but in my view, as I have explained, that
argument is contrary to the Court’s holding in Chadha,
and it is certainly contrary to the Chadha Court’s en-
dorsement of the principle that “Congress is the proper
party to defend the validity of a statute” when the Execu-
tive refuses to do so on constitutional grounds. 462 U. S.,
at 940. See also 2 U. S. C. §288h(7) (Senate Legal Counsel
shall defend the constitutionality of Acts of Congress when
placed in issue).3 Accordingly, in the narrow category of
cases in which a court strikes down an Act of Congress
and the Executive declines to defend the Act, Congress
both has standing to defend the undefended statute and is
a proper party to do so.
II
Windsor and the United States argue that §3 of DOMA
violates the equal protection principles that the Court has
found in the Fifth Amendment’s Due Process Clause. See
Brief for Respondent Windsor (merits) 17–62; Brief for
United States (merits) 16–54; cf. Bolling v. Sharpe, 347
U. S. 497 (1954). The Court rests its holding on related
arguments. See ante, at 24–25.
Same-sex marriage presents a highly emotional and
important question of public policy—but not a difficult ques-
tion of constitutional law. The Constitution does not
——————
3 Buckley v. Valeo, 424 U. S. 1 (1976), is not to the contrary. The
Court’s statements there concerned enforcement, not defense.
Cite as: 570 U. S. ____ (2013) 7
ALITO, J., dissenting
guarantee the right to enter into a same-sex marriage.
Indeed, no provision of the Constitution speaks to the
issue.
The Court has sometimes found the Due Process Clauses
to have a substantive component that guarantees liber-
ties beyond the absence of physical restraint. And the
Court’s holding that “DOMA is unconstitutional as a dep-
rivation of the liberty of the person protected by the
Fifth Amendment of the Constitution,” ante, at 25, sug-
gests that substantive due process may partially underlie
the Court’s decision today. But it is well established
that any “substantive” component to the Due Process
Clause protects only “those fundamental rights and lib-
erties which are, objectively, ‘deeply rooted in this Nation’s
history and tradition,’ ” Washington v. Glucksberg, 521
U. S. 702, 720–721 (1997); Snyder v. Massachusetts, 291
U. S. 97, 105 (1934) (referring to fundamental rights as
those that are so “rooted in the traditions and conscience
of our people as to be ranked as fundamental”), as well as
“ ‘implicit in the concept of ordered liberty,’ such that
‘neither liberty nor justice would exist if they were sacri-
ficed.’ ” Glucksberg, supra, at 721 (quoting Palko v. Con­
necticut, 302 U. S. 319, 325–326 (1937)).
It is beyond dispute that the right to same-sex marriage
is not deeply rooted in this Nation’s history and tradition.
In this country, no State permitted same-sex marriage
until the Massachusetts Supreme Judicial Court held in
2003 that limiting marriage to opposite-sex couples violated
the State Constitution. See Goodridge v. Department of
Public Health, 440 Mass. 309, 798 N. E. 2d 941. Nor is the
right to same-sex marriage deeply rooted in the traditions
of other nations. No country allowed same-sex couples to
marry until the Netherlands did so in 2000.4
——————
4 Curry-Sumner, A Patchwork of Partnerships: Comparative Over-
8 UNITED STATES v. WINDSOR
ALITO, J., dissenting
What Windsor and the United States seek, therefore, is
not the protection of a deeply rooted right but the recogni-
tion of a very new right, and they seek this innovation not
from a legislative body elected by the people, but from
unelected judges. Faced with such a request, judges have
cause for both caution and humility.
The family is an ancient and universal human institu-
tion. Family structure reflects the characteristics of a
civilization, and changes in family structure and in the
popular understanding of marriage and the family can
have profound effects. 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. But the process by
which such consequences come about is complex, involving
the interaction of numerous factors, and tends to occur
over an extended period of time.
We can expect something similar to take place if same-
sex marriage becomes widely accepted. The long-term
consequences of this change are not now known and are
unlikely to be ascertainable for some time to come.5 There
are those who think that allowing same-sex marriage will
seriously undermine the institution of marriage. See, e.g.,
S. Girgis, R. Anderson, & R. George, What is Marriage?
Man and Woman: A Defense 53–58 (2012); Finnis, Mar-
riage: A Basic and Exigent Good, 91 The Monist 388, 398
——————
view of Registration Schemes in Europe, in Legal Recognition of Same-
Sex Partnerships 71, 72 (K. Boele-Woelki & A. Fuchs eds., rev. 2d ed.,
2012).
5 As sociologists have documented, it sometimes takes decades to doc-
ument the effects of social changes—like the sharp rise in divorce
rates following the advent of no-fault divorce—on children and society.
See generally J. Wallerstein, J. Lewis, & S. Blakeslee, The Unexpected
Legacy of Divorce: The 25 Year Landmark Study (2000).
Cite as: 570 U. S. ____ (2013) 9
ALITO, J., dissenting
(2008).6 Others think that recognition of same-sex mar-
riage will fortify a now-shaky institution. See, e.g., A.
Sullivan, Virtually Normal: An Argument About Homo-
sexuality 202–203 (1996); J. Rauch, Gay Marriage: Why It
Is Good for Gays, Good for Straights, and Good for Amer-
ica 94 (2004).
At present, no one—including social scientists, philoso-
phers, and historians—can predict with any certainty
what the long-term ramifications of widespread ac-
ceptance of same-sex marriage will be. And judges are
——————
6 Among those holding that position, some deplore and some applaud
this predicted development. Compare, e.g., Wardle, “Multiply and
Replenish”: Considering Same-Sex Marriage in Light of State Interests
in Marital Procreation, 24 Harv. J. L. & Pub. Pol’y 771, 799 (2001)
(“Culturally, the legalization of same-sex marriage would send a mes-
sage that would undermine the social boundaries relating to mar-
riage and family relations. The confusion of social roles linked with
marriage and parenting would be tremendous, and the message of
‘anything goes’ in the way of sexual behavior, procreation, and
parenthood would wreak its greatest havoc among groups of vulnerable
individuals who most need the encouragement of bright line laws
and clear social mores concerning procreative responsibility”) and Gal-
lagher, (How) Will Gay Marriage Weaken Marriage as a Social Institu-
tion: A Reply to Andrew Koppelman, 2 U. St. Thomas L. J. 33, 58 (2005)
(“If the idea of marriage really does matter—if society really does need
a social institution that manages opposite-sex attractions in the inter-
ests of children and society—then taking an already weakened social
institution, subjecting it to radical new redefinitions, and hoping that
there are no consequences is probably neither a wise nor a compassion-
ate idea”), with Brownworth, Something Borrowed, Something Blue: Is
Marriage Right for Queers? in I Do/I Don’t: Queers on Marriage 53, 58–
59 (G. Wharton & I. Phillips eds. 2004) (Former President George W.
“Bush is correct . . . when he states that allowing same-sex couples to
marry will weaken the institution of marriage. It most certainly will do
so, and that will make marriage a far better concept than it previously
has been”) and Willis, Can Marriage Be Saved? A Forum, The Nation,
p. 16 (2004) (celebrating the fact that “conferring the legitimacy of
marriage on homosexual relations will introduce an implicit revolt
against the institution into its very heart”).
10 UNITED STATES v. WINDSOR
ALITO, J., dissenting
certainly not equipped to make such an assessment. The
Members of this Court have the authority and the respon-
sibility to interpret and apply the Constitution. Thus, if
the Constitution contained a provision guaranteeing the
right to marry a person of the same sex, it would be our
duty to enforce that right. But the Constitution simply
does not speak to the issue of same-sex marriage. In our
system of government, ultimate sovereignty rests with the
people, and the people have the right to control their own
destiny. Any change on a question so fundamental should
be made by the people through their elected officials.
III
Perhaps because they cannot show that same-sex mar-
riage is a fundamental right under our Constitution,
Windsor and the United States couch their arguments in
equal protection terms. They argue that §3 of DOMA
discriminates on the basis of sexual orientation, that
classifications based on sexual orientation should trigger a
form of “heightened” scrutiny, and that §3 cannot survive
such scrutiny. They further maintain that the govern-
mental interests that §3 purports to serve are not suffi-
ciently important and that it has not been adequately
shown that §3 serves those interests very well. The
Court’s holding, too, seems to rest on “the equal protection
guarantee of the Fourteenth Amendment,” ante, at 25—
although the Court is careful not to adopt most of Wind-
sor’s and the United States’ argument.
In my view, the approach that Windsor and the United
States advocate is misguided. Our equal protection frame-
work, upon which Windsor and the United States rely,
is a judicial construct that provides a useful mechanism
for analyzing a certain universe of equal protection
cases. But that framework is ill suited for use in evaluat-
ing the constitutionality of laws based on the traditional
understanding of marriage, which fundamentally turn on
Cite as: 570 U. S. ____ (2013) 11
ALITO, J., dissenting
what marriage is.
Underlying our equal protection jurisprudence is the
central notion that “[a] classification ‘must be reasonable,
not arbitrary, and must rest upon some ground of differ-
ence having a fair and substantial relation to the object of
the legislation, so that all persons similarly circumstanced
shall be treated alike.’ ” Reed v. Reed, 404 U. S. 71, 76
(1971) (quoting F. S. Royter Guano Co. v. Virginia, 253
U. S. 412, 415 (1920)). 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.” Reed, supra, at 76.
So, for example, those classifications subject to strict
scrutiny—i.e., classifications that must be “narrowly tai-
lored” to achieve a “compelling” government interest,
Parents Involved in Community Schools v. Seattle School
Dist. No. 1, 551 U. S. 701, 720 (2007) (internal quotation
marks omitted)—are those that are “so seldom relevant to
the achievement of any legitimate state interest that laws
grounded in such considerations are deemed to reflect
prejudice and antipathy.” Cleburne v. Cleburne Living
Center, Inc., 473 U. S. 432, 440 (1985); cf. id., at 452–453
(Stevens, J., concurring) (“It would be utterly irrational to
limit the franchise on the basis of height or weight; it is
equally invalid to limit it on the basis of skin color. None
of these attributes has any bearing at all on the citizen’s
willingness or ability to exercise that civil right”).
In contrast, those characteristics subject to so-called
intermediate scrutiny—i.e., those classifications that
must be “ ‘substantially related’ ” to the achievement of “im-
portant governmental objective[s],” United States v. Vir­
ginia, 518 U. S. 515, 524 (1996); id., at 567 (SCALIA, J.,
dissenting)—are those that are sometimes relevant consid-
erations to be taken into account by legislators, but “gen-
erally provid[e] no sensible ground for different treat-
12 UNITED STATES v. WINDSOR
ALITO, J., dissenting
ment,” Cleburne, supra, at 440. For example, the Court
has held that statutory rape laws that criminalize sexual
intercourse with a woman under the age of 18 years, but
place no similar liability on partners of underage men, are
grounded in the very real distinction that “young men and
young women are not similarly situated with respect to
the problems and the risks of sexual intercourse.” Michael
M. v. Superior Court, Sonoma Cty., 450 U. S. 464, 471
(1981) (plurality opnion). The plurality reasoned that
“[o]nly women may become pregnant, and they suffer
disproportionately the profound physical, emotional, and
psychological consequences of sexual activity.” Ibid. In
other contexts, however, the Court has found that classifi-
cations based on gender are “arbitrary,” Reed, supra, at
76, and based on “outmoded notions of the relative capa-
bilities of men and women,” Cleburne, supra, at 441, as
when a State provides that a man must always be pre-
ferred to an equally qualified woman when both seek to
administer the estate of a deceased party, see Reed, supra,at 76–77.
Finally, so-called rational-basis review applies to classi-
fications based on “distinguishing characteristics relevant
to interests the State has the authority to implement.”
Cleburne, supra, at 441. We have long recognized that
“the equal protection of the laws must coexist with the
practical necessity that most legislation classifies for one
purpose or another, with resulting disadvantages to vari-
ous groups or persons.” Romer v. Evans, 517 U. S. 620,
631 (1996). As a result, in rational-basis cases, where the
court does not view the classification at issue as “inher-
ently suspect,” Adarand Constructors, Inc. v. Peña, 515 U. S.
200, 218 (1995) (internal quotation marks omitted), “the
courts have been very reluctant, as they should be in our
federal system and with our respect for the separation of
powers, to closely scrutinize legislative choices as to
whether, how, and to what extent those interests should
Cite as: 570 U. S. ____ (2013) 13
ALITO, J., dissenting
be pursued.” Cleburne, supra, at 441–442.
In asking the Court to determine that §3 of DOMA is
subject to and violates heightened scrutiny, Windsor and
the United States thus ask us to rule that the presence of
two members of the opposite sex is as rationally related to
marriage as white skin is to voting or a Y-chromosome is
to the ability to administer an estate. That is a striking
request and one that unelected judges should pause before
granting. Acceptance of the argument would cast all those
who cling to traditional beliefs about the nature of mar-
riage in the role of bigots or superstitious fools.
By asking the Court to strike down DOMA as not satis-
fying some form of heightened scrutiny, Windsor and the
United States are really seeking to have the Court resolve
a debate between two competing views of marriage.
The first and older view, which I will call the “tradi-
tional” or “conjugal” view, sees marriage as an intrinsically
opposite-sex institution. BLAG notes that virtually every
culture, including many not influenced by the Abrahamic
religions, has limited marriage to people of the opposite
sex. Brief for Respondent BLAG (merits) 2 (citing Her­
nandez v. Robles, 7 N. Y. 3d 338, 361, 855 N. E. 2d 1, 8
(2006) (“Until a few decades ago, it was an accepted truth
for almost everyone who ever lived, in any society in which
marriage existed, that there could be marriages only
between participants of different sex”)). And BLAG at-
tempts to explain this phenomenon by arguing that the
institution of marriage was created for the purpose of
channeling heterosexual intercourse into a structure that
supports child rearing. Brief for Respondent BLAG 44–46,
49. Others explain the basis for the institution in more
philosophical terms. They argue that marriage is essen-
tially the solemnizing of a comprehensive, exclusive, per-
manent union that is intrinsically ordered to producing
new life, even if it does not always do so. See, e.g., Girgis,
Anderson, & George, What is Marriage? Man and Woman:
14 UNITED STATES v. WINDSOR
ALITO, J., dissenting
A Defense, at 23–28. 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 biologi-
cal kinship.
The other, newer view is what I will call the “consent-
based” vision of marriage, a vision that primarily defines
marriage as the solemnization of mutual commitment—
marked by strong emotional attachment and sexual at-
traction—between two persons. 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.
The Constitution does not codify either of these views of
marriage (although I suspect it would have been hard at
the time of the adoption of the Constitution or the Fifth
Amendment to find Americans who did not take the tradi-
tional view for granted). The silence of the Constitution
on this question should be enough to end the matter as
far as the judiciary is concerned. Yet, Windsor and the
United States implicitly ask us to endorse the consent-based
view of marriage and to reject the traditional view, there-
by arrogating to ourselves the power to decide a question
that philosophers, historians, social scientists, and theolo-
gians are better qualified to explore.7 Because our consti-
——————
7 The degree to which this question is intractable to typical judicial
processes of decisionmaking was highlighted by the trial in Hol­
lingsworth v. Perry, ante, p. ___. In that case, the trial judge, after
Cite as: 570 U. S. ____ (2013) 15
ALITO, J., dissenting
tutional order assigns the resolution of questions of
this nature to the people, I would not presume to en-
shrine either vision of marriage in our constitutional
jurisprudence.
——————
receiving testimony from some expert witnesses, purported to make
“findings of fact” on such questions as why marriage came to be, Perry
v. Schwarzenegger, 704 F. Supp. 2d 921, 958 (ND Cal. 2010) (finding of
fact no. 27) (“Marriage between a man and a woman was traditionally
organized based on presumptions of division of labor along gender lines.
Men were seen as suited for certain types of work and women for
others. Women were seen as suited to raise children and men were
seen as suited to provide for the family”), what marriage is, id., at 961(finding of fact no. 34) (“Marriage is the state recognition and approval
of a couple’s choice to live with each other, to remain committed to one
another and to form a household based on their own feelings about one
another and to join in an economic partnership and support one anoth-
er and any dependents”), and the effect legalizing same-sex marriage
would have on opposite-sex marriage, id., at 972 (finding of fact no. 55)
(“Permitting same-sex couples to marry will not affect the number of
opposite-sex couples who marry, divorce, cohabit, have children outside
of marriage or otherwise affect the stability of opposite-sex marriages”).
At times, the trial reached the heights of parody, as when the trial
judge questioned his ability to take into account the views of great
thinkers of the past because they were unavailable to testify in person
in his courtroom. See 13 Tr. in No. C 09–2292 VRW (ND Cal.),
pp. 3038–3039.
And, if this spectacle were not enough, some professors of constitu-
tional law have argued that we are bound to accept the trial judge’s
findings—including those on major philosophical questions and predic-
tions about the future—unless they are “clearly erroneous.” See Brief
for Constitutional Law and Civil Procedure Professors as Amici Curiae
in Hollingsworth v. Perry, O. T. 2012, No. 12–144, pp. 2–3 (“[T]he
district court’s factual findings are compelling and should be given
significant weight”); id., at 25 (“Under any standard of review, this
Court should credit and adopt the trial court’s findings because they
result from rigorous and exacting application of the Federal Rules of
Evidence, and are supported by reliable research and by the unanimous
consensus of mainstream social science experts”). Only an arrogant
legal culture that has lost all appreciation of its own limitations could
take such a suggestion seriously.
16 UNITED STATES v. WINDSOR
ALITO, J., dissenting
Legislatures, however, have little choice but to decide
between the two views. 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. See, e.g., Rust v. Sullivan, 500 U. S. 173,
192 (1991) (“[T]he government ‘may make a value judg-
ment favoring childbirth over abortion’ ” (quoting Maher v.
Rue, 432 U. S. 464, 474 (1977))). Accordingly, both Con-
gress and the States are entitled to enact laws recognizing
either of the two understandings of marriage. 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.
Rather than fully embracing the arguments made by
Windsor and the United States, the Court strikes down §3
of DOMA as a classification not properly supported by its
objectives. The Court reaches this conclusion in part
because it believes that §3 encroaches upon the States’
sovereign prerogative to define marriage. See ante, at 21–
22 (“As the title and dynamics of the bill indicate, its
purpose is to discourage enactment of state same-sex
marriage laws and to restrict the freedom and choice of
couples married under those laws if they are enacted. The
congressional goal was ‘to put a thumb on the scales and
influence a state’s decision as to how to shape its own
marriage laws’ ” (quoting Massachusetts v. United States
Dept. of Health and Human Servs., 682 F. 3d 1, 12–13
(CA1 2012))). Indeed, the Court’s ultimate conclusion is
that DOMA falls afoul of the Fifth Amendment because it
“singles out a class of persons deemed by a State entitled
to recognition and protection to enhance their own liberty”
and “imposes a disability on the class by refusing to
acknowledge a status the State finds to be dignified and
Cite as: 570 U. S. ____ (2013) 17
ALITO, J., dissenting
proper.” Ante, at 25 (emphasis added).
To the extent that the Court takes the position that the
question of same-sex marriage should be resolved primar-
ily at the state level, I wholeheartedly agree. I hope that
the Court will ultimately permit the people of each State
to decide this question for themselves. Unless the Court is
willing to allow this to occur, the whiffs of federalism in
the today’s opinion of the Court will soon be scattered to
the wind.
In any event, §3 of DOMA, in my view, does not en-
croach on the prerogatives of the States, assuming of
course that the many federal statutes affected by DOMA
have not already done so. Section 3 does not prevent any
State from recognizing same-sex marriage or from extend-
ing to same-sex couples any right, privilege, benefit, or
obligation stemming from state law. All that §3 does is to
define a class of persons to whom federal law extends cer-
tain special benefits and upon whom federal law imposes
certain special burdens. 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 viewed
married couples as comprising a unique type of economic
unit that merits special regulatory treatment. Assuming
that Congress has the power under the Constitution to
enact the laws affected by §3, Congress has the power to
define the category of persons to whom those laws apply.
* * *
For these reasons, I would hold that §3 of DOMA does
not violate the Fifth Amendment. I respectfully dissent.