Windsor paid estate tax after her same sex spouse died. She sought a refund in district court arguing Section 3 of the defense of Marriage Act is unconstitutional. The district court agreed and the 2nd Circuit affirmed. The Court, 5-4, affirmed. The majority held that there was Article III standing as the Executive branch, while agreeing that Section 3 is unconstitutional, has not refunded the taxes as ordered. The majority also found there was prudential standing as Section 3 was defended below by the Legislative branch and waiting for a perfect case would cause harm to thousands. The majority held that the dignity given to same sex marriages by states is a liberty interest protected by the due process clause of the Fifth Amendment. Because Section 3 sets same sex couples apart and treats them as second class marriages, it deprives these couples of their liberty interest. After giving careful consideration to the law and its purpose to protect heterosexual marriage and discourage legal recognition to same sex marriage, the majority found no legitimate rational to overcome the conclusion that Section 3 is discriminatory in conception and operation and is therefore unconstitutional. Chief Justice Roberts dissented arguing there was no jurisdiction over the case and that the majority did not decide there is a right under the federal constitution to same sex marriage. Justice Scalia, joined by Justice Thomas and joined in part by Chief Justice Roberts, dissented arguing that there was no jurisdiction over the case as both parties agree on the law, the outcome, the reasoning and everything else. Thus, there is no live controversy and the Second Circuit should have dismissed the case. This dissent argued that eh executive can shield it determinations of constitutionality of statutes by refusing to enforce them and there is no free standing right for the court as an institution to blurt out its views on legal issues just because it wants to. This dissent rejected Justice Alito’s alternative theory of standing because it would allow the legislative and executive branches to hale each other into court to resolve what are really political issues and which should be resolved through political, not legal, means. The dissent argued that the majority failed to adopt any standard of review or even identify what theory it applied such as substantive due process, equal protection or federalism. The dissent would have applied rational basis analysis and would have held that avoidance of difficult choice of law issues, preservation of existing law form changes brought about by recognition in some states of same sex marriages were sufficient to sustain the act. The dissent decried the majority’s declaration of supports of the act as the enemies of the human race which will inevitably lead to a forced recognition of same sex marriage in states where the populace does not want that outcome. This dissent finished with a lament that eh majority constrained the people’s right to govern themselves based on its over expansive view of the Court’s importance in human affairs. Justice Alito, joined in part by Justice Thomas dissented arguing that the House of Representatives had standing as its interests were injured by the declaration of Section 3 to be unconstitutional. As to the merits, this dissent argued that the United States constitution does not explicitly grant a right to same sex marriage nor is it so fundamental to liberty as to be protected by the due process clause. Thus, the issue is left to be determined by the people through the political process. The dissent finally argued that neither congress nor the states are required by eh constitution to adopt Windsor’s view of marriage and the court should not impose that view either.
Sekhar was convicted of extortion under 18 USC 1951 based his efforts to get a government attorney to recommend investment in Sekhar’s funds. The 2nd Circuit affirmed. The Court, with three justices concurring in judgment, reversed. The majority held that extortion requires transferable property such as cash and the advice of an attorney is not transferable. The majority noted that Congress adopted 1951 verbatim from New York law and New York law classifies Sekher’s actions as coercion not extortion. The majority also noted that court precedent did not include coercive acts in the definition of extortion. The concurrence in judgment argued that attorney advice is nto property because just as a state license is not property the internal recommendation of a government attorney is nto property.
Perry challenged California Proposition 8 in federal court. The district court allowed the official sponsors of Proposition 8 to defend it and the 9th Circuit allowed the proponents to defend it on appeal. The 9th Circuit ultimately affirmed. The Court, 5-4, vacated the 9th Circuit opinion. The majority held that the proponents lacked standing as they have only a generalized grievance that the proposition is constitutional, have not been appointed agents of California to defend the proposition and under their own pleadings do not represent California’s interests. Thus, as the California state and local officials declined to appeal, there was no party with standing at the 9th Circuit level and that opinion must be vacated and the case dismissed. The dissent argued the proponents have standing because the California Supreme Court declared their unique interest in the proposition and the right to defend it in court rises form the California Constitution and election Code. The dissent argued the lack of agency deemed fatal by the majority was an essential feature of the California initiative process which prevents elected officials form de facto vetoing initiatives. The dissent pointed out that California law grants the right to defend and thus this case is not like the Arizona initiative case relied upon by the majority as Arizona did not have any special role for initiative proponents. The dissent also pointed to special prosecutors and qui tam plaintiffs neither of whom are agents as defined by the majority.