December 13, 2012

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

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

The Windsor case is especially striking, because the plaintiff's stake in the case is knock-you-over-the-head clear and tangible:
Ms. Windsor owes more than $300,000 in federal estate tax on the property left to her by the woman to whom she was legally married in the eyes of New York State. Had she been married to a man, she would have inherited the property tax-free. With DOMA barring the federal government from recognizing same-sex marriage, and the Obama administration taking the position that it will enforce the law until the Supreme Court or Congress tell it otherwise, there certainly seems to be a controversy between the parties sufficient to meet the test of Article III jurisdiction.
But the Obama administration declines to defend the constitutionality of DOMA, and Windsor won in the lower courts, making things nonadversarial, and the federal courts can only resolve actual controversies between the parties. But it's not as if DOMA has gone away. It still affects people, and Congress isn't about to repeal it.
Democrats in Congress wanted no part of defending DOMA, even though the statute had passed both houses in 1996 by big bipartisan majorities and was signed into law by President Bill Clinton. So a five-member House leadership body called the Bipartisan Legal Advisory Group decided, over the objections of its two Democratic members, to take over the executive branch’s abandoned defense of DOMA....
The question in the case is whether this Bipartisan Legal Advisory Group can take over defending the law and thereby preserve the adversarial quality of the case. Obviously, it will be litigated with intensity and excellence. The Group has Paul Clement as its lawyer. But that's not the point in standing doctrine.

50 comments:

Shouting Thomas said...

Doesn't the fact that Ms. Windsor owns the sort of property that leads to $300,000 in death taxes mean that she's a member of the wicked 1%?

Don't we have conflicting political loyalties here?

Homo = Good!
1% = Bad!

Does the homo part override the 1% part?

Ms. Windsor needs to pay her fair share!

Jeffrey said...

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

The general punctuation rule is that we don't set off clause-final causal subordinate clauses with a comma, but I've noticed its use here and there, mostly on the internet. Okay, let's try that sentence without the comma. Does this read any differently?

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

Hm.

As a writing teacher, I generally don't allow students to put commas before because-clauses, but I'm open to debate on this issue here.

Mitchell the Bat said...
This comment has been removed by the author.
MadisonMan said...

It seems to me that there should have been some mechanism for the plaintiff here (and her partner) to shelter themselves from the tax bite.

Still, if a hetero couple has this protection as a matter of course, I'm not sure why a same-sex couple should not (other than the law, of course, which although prettily named DOMA doesn't really defend marriage as it does not make divorces more difficult to obtain, which just proves my point that Acronym Law Is Bad Law (ALIBL)).

Irene said...

"Ms. Windsor owes more than $300,000 in federal estate tax on the property left to her by the woman to whom she was legally married in the eyes of New York State."

Ms. Windsor does not owe the taxes; the decedent's estate does. Shouldn't the estate be the party in this case? This is a small point because in the end, Windsor, as the beneficiary, loses money, but it's an important legal point.

Mitchell the Bat said...

"With DOMA barring the federal government from recognizing same-sex marriage, . . ."

So it turns out God can make a rock so heavy He can't lift it.

MadisonMan said...

@Jeffrey, total agreement. That comma is superfluous.

Bob Boyd said...

With respect Jeffery you need a vacation.
In the mean time put commas in here wherever you like.

Shouting Thomas said...

After all, same-sex marriage is legal in nine states and the District of Columbia, and public opinion on the issue is evolving rapidly in other parts of the country, with or without the blessing of the United States Supreme Court.

Yeah, that 32-1 (I think) scorecard on actual state referendum results is clear evidence that public opinion is "evolving rapidly!" Can't argue with logic like that.

It's been said often, but why does this legal inheritance issue have any bearing on the definition of marriage? Seems like it can and should be resolved without the social engineering effort.

Shouting Thomas said...

That is "that 32-1 (I think) scorecard" opposed to gay marriage!

The voters will "evolve," or else!

edutcher said...

I always thought DOMA was part of Willie's rearguard action to wag the dog in the face of Whitewater and L'Affaire Monica, and thus a crock.

Renee said...

Back in 04' in Massachusetts, this issue came up a lot in conversation. Why didn't congress change the IRS tax code to get rid of the inheritance tax in this time?

Mitchell the Bat said...

Ms. Windsor seems to have taken her mother's advice to heart that it's just as easy to marry a rich lesbian as it is to marry a poor lesbian.

The Drill SGT said...

The Irony is that Holder the AG won't defend DOMA, but at the same time, the IRS wants its 300,000 pounds of flesh based on DOMA.

In both cases, DOMA and Prop 8, you have Democratic Executives determining which laws they want to enforce based on political whim.

THAT is the bad precedent here...

EDH said...

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

Sweet Jane

Standing on the corner,
suitcase in my hand
Jack is in his corset, and Jane is her vest,
And me I'm in a rock'n'roll band Hah!
Ridin' in a Stutz Bear Cat, Jim
You know, those were different times!
Oh, all the poets they studied rules of verse
And those ladies, they rolled their eyes

Sweet Jane! Whoa! Sweet Jane, oh-oh-a! Sweet Jane!

I'll tell you something
Jack, he is a banker
And Jane, she is a clerk
Both of them save their monies, ha
And when, when they come home from work
Oh, Sittin' down by the fire, oh!
The radio does play
The classical music there, Jim
"The March of the Wooden Soldiers"
All you protest kids
You can hear Jack say, get ready, ah

Sweet Jane! Come on baby! Sweet Jane! Oh-oh-a! Sweet Jane!

Some people, they like to go out dancing
And other peoples, they have to work, Just watch me now!
And there's even some evil mothers
Well they're gonna tell you that everything is just dirt
Y'know that, women, never really faint
And that villains always blink their eyes, woo!
And that, y'know, children are the only ones who blush!
And that, life is just to die!
And, everyone who ever had a heart
They wouldn't turn around and break it
And anyone who ever played a part
Oh wouldn't turn around and hate it!

Ann Althouse said...

"Doesn't the fact that Ms. Windsor owns the sort of property that leads to $300,000 in death taxes mean that she's a member of the wicked 1%? Don't we have conflicting political loyalties here?"

That made me remember — it was years ago — when part of the political argument about gay rights was that gay people were financially well-off. The didn't make good lefty victims or this reason. I can't remember how all of that played out.

Mark said...

So a five-member House leadership body called the Bipartisan Legal Advisory Group decided, over the objections of its two Democratic members, to take over the executive branch’s abandoned defense of DOMA....

A classic example of Republican "Leadership" Stupidity.

Jeffrey said...

Madison Man,

Maybe that comma is a vestige of Ann's Germanic roots. In German orthography, all clause-final subordinate clauses are preceded by a comma (they're obligatory). In English, we tend to use commas only with concessive clauses (although ...). As a teacher, I have to provide students with rules (and sometimes tendencies) about writing. My basic rule is that we don't set off because-clauses with a comma. But there may be subtleties in its use that I'm missing.

Jeffrey said...

Bob Boyd,

With respect Jeffery you need a vacation.
In the mean time put commas in here wherever you like.


Let me clean that up for you.

With respect[,] Jeffery[,] you need a vacation.
In the mean time[,] put commas in here wherever you like.

Much better.

No charge, fella.

Ann Althouse said...

@Irene For standing purposes, she needs a "distinct and palpable"/"concrete and particularized" injury. Surely, she has that.

Ann Althouse said...

Better answer to Irene: Windsor is suing in her official capacity as the executor of the estate.

Ann Althouse said...

Jeffrey is punctilious. And commatilious.

MadisonMan said...

Executrix.

MadisonMan said...

That's one of my favorite words, executrix. Or its plural.

Especially because if it's applied to a will in which I'm mentioned, it means I don't have to do the work!

Jeffrey said...

Ann,

Jeffrey is punctilious. And commatilious.

Not really. I just noticed a punctuation sample that I encounter from time to time and on which I have to make a decision for my students -- just like you do about law issues with your students.

I know you like to concern yourself with matters of English usage and this is certainly one of them.

Maybe you could transfer you ability to make legal arguments to English orthography and argue for the use of commas before causal clause-final subordinate clauses. Who knows? Maybe your use of commas is in the vanguard and in fifty years everyone will write sentences like this:

I bought a new computer, because my old one froze up.

Um, I may be a little disputatious.

Matthew Sablan said...

I'm no fan of DOMA; I'd be glad to be done away with it. I'm just curious how funny it might be if DOMA gets upheld because it is not the Supreme Court's job to protect people from bad legislation, just to see how quickly positions flip on the court's legitimacy/findings.

wyo sis said...

mean time = meantime
just to be punctilious.

Paddy O said...

"I can't remember how all of that played out."

Fabulous.

Being fabulous became the exception to Greedy, Rich Bastards must pay rule.

X said...

Congress has the power to tax under the constitution. Gay couples aren't the only ones discriminated against under the community property exemption, just the loudest. The exemption needs to be extended to all citizens or none. There is no rationale for it to be couples only.

Paddy O said...

I'll take up the comma war.

As a point of grammar the comma is bad.

However, the role of the comma in a more holistic sense is to give guidance to the reader. Without the comma the initial phrase is combined into the justification. With the comma, the reader is instructed to pause, thus emphasizing the initial phrase, then adding the explanation as a secondary addition.

Ann's way suggests a priority of communication control over grammar adherence.

Note, the appropriateness to emoticons serving the same purpose of controlling the reader, using punctuation to not only affect pause and rhythm but also emotion.

Bob Boyd said...

Thanks, Jeffery.

Dust Bunny Queen said...

It seems to me that there should have been some mechanism for the plaintiff here (and her partner) to shelter themselves from the tax bite.

Ahem.....There is. It is called Estate Planning. Gay or Straight, people need to plan ahead. Especially people who obviously have significant assets that the Government would just love to seize.

They didn't do it. They lose.

However, since States are legalizing same sex marriage, the Feds need to address these tax issues.

Renee said...

DBQ, How many people sell their home for a buck to a love one? A lot.

Dust Bunny Queen said...

@ Renee. That would not stand muster for the IRS. A sale transaction needs to be at least comparable to market value otherwise they will consider it a gift. There is also the issue of timing in doing the planning. Waiting too late and doing the gyrations shortly before the death, the IRS will say that it is an evasion and negate the transactions.

There are many ways to plan. You just have to actually do it!

The biggest obstacle, as I found it in my practice, is the reluctance or inability to face our ultimate mortality.

FuzzyFace said...

I do not understand how it can be that if the executive declines to defend a law, that nobody else can have standing to do so. Doesn't that allow the executive effectively to nullify a law it doesn't like (sort of an after-the-fact veto)?

glenn said...

Another reason why since we have abandoned all the standards regarding STD's etc the government has no business involving itself in marriage. Its involvment is just make work for lawyers.

Irene said...

Thanks, Althouse. That makes sense.

Renee said...

@DBQ

Die penniless with a plot already reserved at the cemetery solves everything. Best gift for love ones.

Unexpected death of a middle age individual can be a hit, but the plaintiff in this case was elderly.

cubanbob said...

Dust Bunny Queen said...
@ Renee. That would not stand muster for the IRS. A sale transaction needs to be at least comparable to market value otherwise they will consider it a gift. There is also the issue of timing in doing the planning. Waiting too late and doing the gyrations shortly before the death, the IRS will say that it is an evasion and negate the transactions.

Considering the current estate tax law, it may have been been a good idea to have the property gifted. The house could have been put in a trust and Windsor made the beneficiary and the donor been granted a life estate.

cubanbob said...

Another and more interesting thing stemming from this case is in the event the executive branch refuses to do its duty and defend the law before the courts does the legislative branch have a duty to defend the law or laws it passes that are on the books if the executive refuses to do so?

Jeffrey said...

PaddyO,

However, the role of the comma in a more holistic sense is to give guidance to the reader. Without the comma the initial phrase is combined into the justification. With the comma, the reader is instructed to pause, thus emphasizing the initial phrase, then adding the explanation as a secondary addition.

Ann's way suggests a priority of communication control over grammar adherence.


That's very good. I've read arguments very similar to yours about comma usage before because-clauses. I also wonder if its use reflects spoken over written register. The internet is good at allowing writers to mimic the spoken register, which is one of the reasons blogs on the internet are so much fun. In spoken English, there are lots of pauses and fillers, so Ann may be indicating a pause and not using it as a visual marker. Also, I wonder if the comma + because structure is based on an analogy with the comma + although structure.

Ann Althouse said...

@Madison Man:

EDITH SCHLAIN WINDSOR, IN HER OFFICIAL CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER, Plaintiff-Appellee, - v. - UNITED STATES OF AMERICA, Defendant-Appellant, and BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES, Intervenor-Defendant-Appellant.

Docket No. 12-2335-cv(L); 12-2435(Con)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

699 F.3d 169; 2012 U.S. App. LEXIS 21785; 2012-2 U.S. Tax Cas. (CCH) P60,654; 110 A.F.T.R.2d (RIA) 6370

September 27, 2012, Argued
October 18, 2012, Decided

Bruce Hayden said...

That made me remember — it was years ago — when part of the political argument about gay rights was that gay people were financially well-off. The didn't make good lefty victims or this reason. I can't remember how all of that played out.

I think, statistically, that was gay males, and not lesbians. Which, if you think about it, is a bit odd. Marriage and children are some of the biggest incentives for males to buckled down and put in the hours and years needed to raise families and become successful. And, the gender gap in wages and salaries apparently almost completely disappears when you control for time in a job and how many hours worked a week. Lesbians though typically in the past haven't had the family responsibilities that married straight women often have, that tend to reduce their pay, and, thus, should be making as much as unmarried men, straight, gay, or N/A.

mccullough said...

If California's AG and the DOJ don't want to defend these laws, then the court should rule that there is no standing.

The people in California can vote out the AG and the House can impeach Eric Holder for not defending the constitutionality of duly enacted laws.

Bruce Hayden said...

Interesting. Initially thought that this was going to be about an attempt by the left to cheat their way into getting DOMA invalidated, which, of course, some of it is. And, letting it stand, at least in the 9th Circuit, because it has recently been the most liberal circuit, along with the Obama Administration buying gay votes for the last election, is a bit problematic in my view.

I think that the invalidation of DOMA by the federal courts, if done after being well defended in the Supreme Court, would go down much better than if its invalidation is maintained by the other side managing to get top counsel from defending the legislation.

Of course, maybe the easiest solution here would be to have the Supreme Court appoint Paul Clement to defend the legislation.

This whole area though, of standing, is a can of worms, and esp. when the Executive is involved. The big question that Greenhouse points out is that typically the duty to defend legislation is with the DoJ, and, in particular at this level, the Solicitor General. But, what happens, as here, where one President signs the legislation into law, and one of his predecessors, for political reasons, doesn't like the legislation? He essentially prevents the DoJ from defending the legislation, acting somewhat to de facto veto it years after enactment. This is, to some extent, a significant increase in executive power, not envisioned, I think, by our founders or found in our Constitution.

mccullough said...

Bruce,

Congress has tools at its disposal if it thinks the President is shirking his duty. But it's not the Court's job to make up rules for standing to get around a conflict between Congress and the President.

Nor is it the Court's job to protect California voters from their poor selection of governors and attorney generals. The Court's only job in this case is to say there is no standing and to dismiss for lack of jurisdiction.

Lyssa said...

That made me remember — it was years ago — when part of the political argument about gay rights was that gay people were financially well-off. The didn't make good lefty victims or this reason. I can't remember how all of that played out.

I might just have a bad sample, but most of the gays that I know (pretty much all male) are remarkably self-destructive. Drugs or drinking, can't hold a job or move above the lowest ranks, no education, etc. - unwilling or unable to do anything which would lead to them accumulating any wealth at all. Maybe it has nothing to do with their sexuality, I don't know, but it seems to be a common trait.

Synova said...

Estate tax is evil.

Your wealth has already been taxed. When you die your family or anyone else should be able to receive it as a gift from you without the federal government demanding its cut of the take like the mobster it is.

There are ways, other than marriage, to protect your wealth from theft by the state when you die, but you shouldn't have to be a financial genius just for the privilege of not getting stolen from.

Also, this lady, because she married, probably thought she had made those provisions.

Rabel said...

"But if, notwithstanding, opposition is still given to the due execution of the Law, I have no hesitation in declaring, if the evidence of it is clear and unequivocal, that I shall, however reluctantly I exercise them, exert all the legal powers with which the Executive is invested, to check so daring and unwarrantable a spirit. It is my duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to it; nor can the Government longer remain a passive spectator of the contempt with which they are treated."

A view on Presidential responsibility from G. Washington.

MadisonMan said...

That's disappointing -- the Courts have done away with the outstanding word Executrix!