United States Supreme Court 3.
State criminal abortion laws, like those involved here, that except from
ROE v. WADE, (1973)
No. 70-18
Argued: December 13, 1971 Decided: January 22, 1973
A pregnant single woman (Roe) brought a class action challenging the
constitutionality of the Texas criminal abortion laws, which proscribe
procuring or attempting an abortion except on medical advice for the
purpose of saving the mother's life. A licensed physician (Hallford), who had
two state abortion prosecutions pending against him, was permitted to
intervene. A childless married couple (the Does), the wife not being
pregnant, separately attacked the laws, basing alleged injury on the future
possibilities of contraceptive failure, pregnancy, unpreparedness for
parenthood, and impairment of the wife's health. A three-judge District Court,
which consolidated the actions, held that Roe and Hallford, and members of
their classes, had standing to sue and presented justiciable controversies.
Ruling that declaratory, though not injunctive, relief was warranted, the court
declared the abortion statutes void as vague and overbroadly infringing
those plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the
Does' complaint not justiciable. Appellants directly appealed to this Court on
the injunctive rulings, and appellee cross-appealed from the District Court's
grant of declaratory relief to Roe and Hallford. Held:
1. While 28 U.S.C. 1253 authorizes no direct appeal to this Court from the
grant or denial of declaratory relief alone, review is not foreclosed when the
case is properly before the Court on appeal from specific denial of injunctive
relief and the arguments as to both injunctive and declaratory relief are
necessarily identical. P. 123.
2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129.
(a) Contrary to appellee's contention, the natural termination of Roe's
pregnancy did not moot her suit. Litigation involving pregnancy, which is
"capable of repetition, yet evading review," is an exception to the usual
federal rule that an actual controversy [410 U.S. 113, 114] must exist at
review stages and not simply when the action is initiated. Pp. 124-125.
(b) The District Court correctly refused injunctive, but erred in granting
declaratory, relief to Hallford, who alleged no federally protected right not
assertable as a defense against the good-faith state prosecutions pending
against him. Samuels v. Mackell, 401 U.S. 66 . Pp. 125-127.
(c) The Does' complaint, based as it is on contingencies, any one or more of
which may not occur, is too speculative to present an actual case or
controversy. Pp. 127-129.
criminality only a life-saving procedure on the mother's behalf without regard
to the stage of her pregnancy and other interests involved violate the Due
Process Clause of the Fourteenth Amendment, which protects against state
action the right to privacy, including a woman's qualified right to terminate
her pregnancy. Though the State cannot override that right, it has legitimate
interests in protecting both the pregnant woman's health and the potentiality
of human life, each of which interests grows and reaches a "compelling"
point at various stages of the woman's approach to term. Pp. 147-164.
(a) For the stage prior to approximately the end of the first trimester, the
abortion decision and its effectuation must be left to the medical judgment of
the pregnant woman's attending physician. Pp. 163, 164.
(b) For the stage subsequent to approximately the end of the first trimester,
the State, in promoting its interest in the health of the mother, may, if it
chooses, regulate the abortion procedure in ways that are reasonably
related to maternal health. Pp. 163, 164.
(c) For the stage subsequent to viability the State, in promoting its interest in
the potentiality of human life, may, if it chooses, regulate, and even
proscribe, abortion except where necessary, in appropriate medical
judgment, for the preservation of the life or health of the mother. Pp. 163-
164; 164-165.
4. The State may define the term "physician" to mean only a physician
currently licensed by the State, and may proscribe any abortion by a person
who is not a physician as so defined. P. 165.
5. It is unnecessary to decide the injunctive relief issue since the Texas
authorities will doubtless fully recognize the Court's ruling [410 U.S. 113,
115] that the Texas criminal abortion statutes are unconstitutional. P. 166.
314 F. Supp. 1217, affirmed in part and reversed in part.
BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J.,
and DOUGLAS, BRENNAN, STEWART, MARSHALL, and POWELL, JJ.,
joined. BURGER, C. J., post, p. 207, DOUGLAS, J., post, p. 209, and
STEWART, J., post, p. 167, filed concurring opinions. WHITE, J., filed a
dissenting opinion, in which REHNQUIST, J., joined, post, p. 221.
REHNQUIST, J., filed a dissenting opinion, post, p. 171.
Sarah Weddington reargued the cause for appellants. With her on the briefs
were Roy Lucas, Fred Bruner, Roy L. Merrill, Jr., and Norman Dorsen.
Robert C. Flowers, Assistant Attorney General of Texas, argued the cause
for appellee on the reargument. Jay Floyd, Assistant Attorney General,
argued the cause for appellee on the original argument. With them on the
brief were Crawford C. Martin, Attorney General, Nola White, First Assistant
Attorney General, Alfred Walker, Executive Assistant Attorney General,
Henry Wade, and John B. Tolle. * [410 U.S. 113, 116]
[ Footnote * ] Briefs of amici curiae were filed by Gary K. Nelson, Attorney
General of Arizona, Robert K. Killian, Attorney General of Connecticut, Ed W.
Hancock, Attorney General of Kentucky, Clarence A. H. Meyer, Attorney
General of Nebraska, and Vernon B. Romney, Attorney General of Utah; by
Joseph P. Witherspoon, Jr., for the Association of Texas Diocesan Attorneys;
by Charles E. Rice for Americans United for Life; by Eugene J. McMahon for
Women for the Unborn et al.; by Carol Ryan for the American College of
Obstetricians and Gynecologists et al.; by Dennis J. Horan, Jerome A.
Frazel, Jr., Thomas M. Crisham, and Dolores V. Horan for Certain
Physicians, Professors and Fellows of the American College of Obstetrics
and Gynecology; by Harriet F. Pilpel, Nancy F. Wechsler, and Frederic S.
Nathan for Planned Parenthood Federation of America, Inc., et al.; by Alan F.
Charles for the National Legal Program on Health Problems of the Poor et
al.; by Marttie L. Thompson for State Communities Aid Assn.; by [410 U.S.
113, 116] Alfred L. Scanlan, Martin J. Flynn, and Robert M. Byrn for the
National Right to Life Committee; by Helen L. Buttenwieser for the American
Ethical Union et al.; by Norma G. Zarky for the American Association of
University Women et al.; by Nancy Stearns for New Women Lawyers et al.;
by the California Committee to Legalize Abortion et al.; and by Robert E.
Dunne for Robert L. Sassone.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p.
179, present constitutional challenges to state criminal abortion legislation.
The Texas statutes under attack here are typical of those that have been in
effect in many States for approximately a century. The Georgia statutes, in
contrast, have a modern cast and are a legislative product that, to an extent
at least, obviously reflects the influences of recent attitudinal change, of
advancing medical knowledge and techniques, and of new thinking about an
old issue.
We forthwith acknowledge our awareness of the sensitive and emotional
nature of the abortion controversy, of the vigorous opposing views, even
among physicians, and of the deep and seemingly absolute convictions that
the subject inspires. One's philosophy, one's experiences, one's exposure to
the raw edges of human existence, one's religious training, one's attitudes
toward life and family and their values, and the moral standards one
establishes and seeks to observe, are all likely to influence and to color
one's thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend
to complicate and not to simplify the problem.
Our task, of course, is to resolve the issue by constitutional measurement,
free of emotion and of predilection. We seek earnestly to do this, and,
because we do, we [410 U.S. 113, 117] have inquired into, and in this
opinion place some emphasis upon, medical and medical-legal history and
what that history reveals about man's attitudes toward the abortion
procedure over the centuries. We bear in mind, too, Mr. Justice Holmes'
admonition in his now-vindicated dissent in Lochner v. New York, 198 U.S.
45, 76 (1905):
"[The Constitution] is made for people of fundamentally differing views, and
the accident of our finding certain opinions natural and familiar or novel and
even shocking ought not to conclude our judgment upon the question
whether statutes embodying them conflict with the Constitution of the United
States."
I
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the
State's Penal Code. 1 These make it a crime to "procure an abortion," as
therein [410 U.S. 113, 118] defined, or to attempt one, except with respect
to "an abortion procured or attempted by medical advice for the purpose of
saving the life of the mother." Similar statutes are in existence in a majority
of the States. 2 [410 U.S. 113, 119]
Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c.
49, 1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon
modified into language that has remained substantially unchanged to the
present time. See Texas Penal Code of 1857, c. 7, Arts. 531-536; G.
Paschal, Laws of Texas, Arts. 2192-2197 (1866); Texas Rev. Stat., c. 8, Arts.
536-541 (1879); Texas Rev. Crim. Stat., Arts. 1071-1076 (1911). The final
article in each of these compilations provided the same exception, as does
the present Article 1196, for an abortion by "medical advice for the purpose
of saving the life of the mother." 3 [410 U.S. 113, 120]
II
Jane Roe, 4 a single woman who was residing in Dallas County, Texas,
instituted this federal action in March 1970 against the District Attorney of the
county. She sought a declaratory judgment that the Texas criminal abortion
statutes were unconstitutional on their face, and an injunction restraining the
defendant from enforcing the statutes.
Roe alleged that she was unmarried and pregnant; that she wished to
terminate her pregnancy by an abortion "performed by a competent,
licensed physician, under safe, clinical conditions"; that she was unable to
get a "legal" abortion in Texas because her life did not appear to be
threatened by the continuation of her pregnancy; and that she could not
afford to travel to another jurisdiction in order to secure a legal abortion
under safe conditions. She claimed that the Texas statutes were
unconstitutionally vague and that they abridged her right of personal privacy,
protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By
an amendment to her complaint Roe purported to sue "on behalf of herself
and all other women" similarly situated.
James Hubert Hallford, a licensed physician, sought and was granted leave
to intervene in Roe's action. In his complaint he alleged that he had been
arrested previously for violations of the Texas abortion statutes and [410
U.S. 113, 121] that two such prosecutions were pending against him. He
described conditions of patients who came to him seeking abortions, and he
claimed that for many cases he, as a physician, was unable to determine
whether they fell within or outside the exception recognized by Article 1196.
He alleged that, as a consequence, the statutes were vague and uncertain,
in violation of the Fourteenth Amendment, and that they violated his own and
his patients' rights to privacy in the doctor-patient relationship and his own
right to practice medicine, rights he claimed were guaranteed by the First,
Fourth, Fifth, Ninth, and Fourteenth Amendments.
John and Mary Doe, 5 a married couple, filed a companion complaint to that
of Roe. They also named the District Attorney as defendant, claimed like
constitutional deprivations, and sought declaratory and injunctive relief. The
Does alleged that they were a childless couple; that Mrs. Doe was suffering
from a "neural-chemical" disorder; that her physician had "advised her to
avoid pregnancy until such time as her condition has materially improved"
(although a pregnancy at the present time would not present "a serious risk"
to her life); that, pursuant to medical advice, she had discontinued use of
birth control pills; and that if she should become pregnant, she would want to
terminate the pregnancy by an abortion performed by a competent, licensed
physician under safe, clinical conditions. By an amendment to their
complaint, the Does purported to sue "on behalf of themselves and all
couples similarly situated."
The two actions were consolidated and heard together by a duly convened
three-judge district court. The suits thus presented the situations of the
pregnant single woman, the childless couple, with the wife not
pregnant, [410 U.S. 113, 122] and the licensed practicing physician, all
joining in the attack on the Texas criminal abortion statutes. Upon the filing of
affidavits, motions were made for dismissal and for summary judgment. The
court held that Roe and members of her class, and Dr. Hallford, had
standing to sue and presented justiciable controversies, but that the Does
had failed to allege facts sufficient to state a present controversy and did not
have standing. It concluded that, with respect to the requests for a
declaratory judgment, abstention was not warranted. On the merits, the
District Court held that the "fundamental right of single women and married
persons to choose whether to have children is protected by the Ninth
Amendment, through the Fourteenth Amendment," and that the Texas
criminal abortion statutes were void on their face because they were both
unconstitutionally vague and constituted an overbroad infringement of the
plaintiffs' Ninth Amendment rights. The court then held that abstention was
warranted with respect to the requests for an injunction. It therefore
dismissed the Does' complaint, declared the abortion statutes void, and
dismissed the application for injunctive relief. 314 F. Supp. 1217, 1225 (ND
Tex. 1970).
The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28
U.S.C. 1253, have appealed to this Court from that part of the District Court's
judgment denying the injunction. The defendant District Attorney has
purported to cross-appeal, pursuant to the same statute, from the court's
grant of declaratory relief to Roe and Hallford. Both sides also have taken
protective appeals to the United States Court of Appeals for the Fifth Circuit.
That court ordered the appeals held in abeyance pending decision here. We
postponed decision on jurisdiction to the hearing on the merits. 402 U.S.
941 (1971). [410 U.S. 113, 123]
III
It might have been preferable if the defendant, pursuant to our Rule 20, had
presented to us a petition for certiorari before judgment in the Court of
Appeals with respect to the granting of the plaintiffs' prayer for declaratory
relief. Our decisions in Mitchell v. Donovan, 398 U.S. 427 (1970), and Gunn
v. University Committee, 399 U.S. 383 (1970), are to the effect that 1253
does not authorize an appeal to this Court from the grant or denial of
declaratory relief alone. We conclude, nevertheless, that those decisions do
not foreclose our review of both the injunctive and the declaratory aspects of
a case of this kind when it is properly here, as this one is, on appeal under
1253 from specific denial of injunctive relief, and the arguments as to both
aspects are necessarily identical. See Carter v. Jury Comm'n, 396 U.S.
320 (1970); Florida Lime Growers v. Jacobsen, 362 U.S. 73, 80 -81 (1960).
It would be destructive of time and energy for all concerned were we to rule
otherwise. Cf. Doe v. Bolton, post, p. 179.
IV
We are next confronted with issues of justiciability, standing, and abstention.
Have Roe and the Does established that "personal stake in the outcome of
the controversy," Baker v. Carr, 369 U.S. 186, 204 (1962), that insures that
"the dispute sought to be adjudicated will be presented in an adversary
context and in a form historically viewed as capable of judicial resolution,"
Flast v. Cohen, 392 U.S. 83, 101 (1968), and Sierra Club v. Morton, 405 U.S.
727, 732 (1972)? And what effect did the pendency of criminal abortion
charges against Dr. Hallford in state court have upon the propriety of the
federal court's granting relief to him as a plaintiff-intervenor? [410 U.S. 113,
124]
A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that
Roe is a fictitious person. For purposes of her case, we accept as true, and
as established, her existence; her pregnant state, as of the inception of her
suit in March 1970 and as late as May 21 of that year when she filed an alias
affidavit with the District Court; and her inability to obtain a legal abortion in
Texas.
Viewing Roe's case as of the time of its filing and thereafter until as late as
May, there can be little dispute that it then presented a case or controversy
and that, wholly apart from the class aspects, she, as a pregnant single
woman thwarted by the Texas criminal abortion laws, had standing to
challenge those statutes. Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971);
Crossen v. Breckenridge, 446 F.2d 833, 838-839 (CA6 1971); Poe v.
Menghini, 339 F. Supp. 986, 990-991 (Kan. 1972). See Truax v. Raich, 239
U.S. 33 (1915). Indeed, we do not read the appellee's brief as really
asserting anything to the contrary. The "logical nexus between the status
asserted and the claim sought to be adjudicated," Flast v. Cohen, 392 U.S.,
at 102 , and the necessary degree of contentiousness, Golden v.
Zwickler, 394 U.S. 103 (1969), are both present.
The appellee notes, however, that the record does not disclose that Roe was
pregnant at the time of the District Court hearing on May 22, 1970, 6 or on
the following June 17 when the court's opinion and judgment were filed. And
he suggests that Roe's case must now be moot because she and all other
members of her class are no longer subject to any 1970 pregnancy. [410
U.S. 113, 125]
The usual rule in federal cases is that an actual controversy must exist at
stages of appellate or certiorari review, and not simply at the date the action
is initiated. United States v. Munsingwear, Inc., 340 U.S. 36 (1950); Golden
v. Zwickler, supra; SEC v. Medical Committee for Human Rights, 404 U.S.
403 (1972).
But when, as here, pregnancy is a significant fact in the litigation, the normal
266-day human gestation period is so short that the pregnancy will come to
term before the usual appellate process is complete. If that termination
makes a case moot, pregnancy litigation seldom will survive much beyond
the trial stage, and appellate review will be effectively denied. Our law
should not be that rigid. Pregnancy often comes more than once to the same
woman, and in the general population, if man is to survive, it will always be
with us. Pregnancy provides a classic justification for a conclusion of
nonmootness. It truly could be "capable of repetition, yet evading review."
Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). See Moore
v. Ogilvie, 394 U.S. 814, 816 (1969); Carroll v. Princess Anne, 393 U.S. 175,
178 -179 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 632 -633
(1953).
We, therefore, agree with the District Court that Jane Roe had standing to
undertake this litigation, that she presented a justiciable controversy, and
that the termination of her 1970 pregnancy has not rendered her case moot.
B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation
as a plaintiff-intervenor, alleging in his complaint that he:
"[I]n the past has been arrested for violating the Texas Abortion Laws and at
the present time stands charged by indictment with violating said laws in the
Criminal District Court of Dallas County, Texas to-wit: (1) The State of Texas
vs. [410 U.S. 113, 126] James H. Hallford, No. C-69-5307-IH, and (2) The
State of Texas vs. James H. Hallford, No. C-69-2524-H. In both cases the
defendant is charged with abortion . . . ."
In his application for leave to intervene, the doctor made like representations
as to the abortion charges pending in the state court. These representations
were also repeated in the affidavit he executed and filed in support of his
motion for summary judgment.
Dr. Hallford is, therefore, in the position of seeking, in a federal court,
declaratory and injunctive relief with respect to the same statutes under
which he stands charged in criminal prosecutions simultaneously pending in
state court. Although he stated that he has been arrested in the past for
violating the State's abortion laws, he makes no allegation of any substantial
and immediate threat to any federally protected right that cannot be asserted
in his defense against the state prosecutions. Neither is there any allegation
of harassment or bad-faith prosecution. In order to escape the rule
articulated in the cases cited in the next paragraph of this opinion that,
absent harassment and bad faith, a defendant in a pending state criminal
case cannot affirmatively challenge in federal court the statutes under which
the State is prosecuting him, Dr. Hallford seeks to distinguish his status as a
present state defendant from his status as a "potential future defendant" and
to assert only the latter for standing purposes here.
We see no merit in that distinction. Our decision in Samuels v. Mackell, 401
U.S. 66 (1971), compels the conclusion that the District Court erred when it
granted declaratory relief to Dr. Hallford instead of refraining from so doing.
The court, of course, was correct in refusing to grant injunctive relief to the
doctor. The reasons supportive of that action, however, are those expressed
in Samuels v. Mackell, supra, and in Younger v. [410 U.S. 113,
127] Harris, 401 U.S. 37 (1971); Boyle v. Landry, 401 U.S. 77 (1971); Perez
v. Ledesma, 401 U.S. 82 (1971); and Byrne v. Karalexis, 401 U.S.
216 (1971). See also Dombrowski v. Pfister, 380 U.S. 479 (1965). We note,
in passing, that Younger and its companion cases were decided after the
three-judge District Court decision in this case.
Dr. Hallford's complaint in intervention, therefore, is to be dismissed. 7 He is
remitted to his defenses in the state criminal proceedings against him. We
reverse the judgment of the District Court insofar as it granted Dr. Hallford
relief and failed to dismiss his complaint in intervention.
C. The Does. In view of our ruling as to Roe's standing in her case, the issue
of the Does' standing in their case has little significance. The claims they
assert are essentially the same as those of Roe, and they attack the same
statutes. Nevertheless, we briefly note the Does' posture.
Their pleadings present them as a childless married couple, the woman not
being pregnant, who have no desire to have children at this time because of
their having received medical advice that Mrs. Doe should avoid pregnancy,
and for "other highly personal reasons." But they "fear . . . they may face the
prospect of becoming [410 U.S. 113, 128] parents." And if pregnancy
ensues, they "would want to terminate" it by an abortion. They assert an
inability to obtain an abortion legally in Texas and, consequently, the
prospect of obtaining an illegal abortion there or of going outside Texas to
some place where the procedure could be obtained legally and competently.
We thus have as plaintiffs a married couple who have, as their asserted
immediate and present injury, only an alleged "detrimental effect upon [their]
marital happiness" because they are forced to "the choice of refraining from
normal sexual relations or of endangering Mary Doe's health through a
possible pregnancy." Their claim is that sometime in the future Mrs. Doe
might become pregnant because of possible failure of contraceptive
measures, and at that time in the future she might want an abortion that
might then be illegal under the Texas statutes.
This very phrasing of the Does' position reveals its speculative character.
Their alleged injury rests on possible future contraceptive failure, possible
future pregnancy, possible future unpreparedness for parenthood, and
possible future impairment of health. Any one or more of these several
possibilities may not take place and all may not combine. In the Does'
estimation, these possibilities might have some real or imagined impact
upon their marital happiness. But we are not prepared to say that the bare
allegation of so indirect an injury is sufficient to present an actual case or
controversy. Younger v. Harris, 401 U.S., at 41 -42; Golden v. Zwickler, 394
U.S., at 109 -110; Abele v. Markle, 452 F.2d, at 1124-1125; Crossen v.
Breckenridge, 446 F.2d, at 839. The Does' claim falls far short of those
resolved otherwise in the cases that the Does urge upon us, namely,
Investment Co. Institute v. Camp, 401 U.S. 617 (1971); Data Processing
Service v. Camp, 397 U.S. 150 (1970); [410 U.S. 113, 129] and Epperson v.
Arkansas, 393 U.S. 97 (1968). See also Truax v. Raich,239 U.S. 33 (1915).
The Does therefore are not appropriate plaintiffs in this litigation. Their
complaint was properly dismissed by the District Court, and we affirm that
dismissal.
V
The principal thrust of appellant's attack on the Texas statutes is that they
improperly invade a right, said to be possessed by the pregnant woman, to
choose to terminate her pregnancy. Appellant would discover this right in the
concept of personal "liberty" embodied in the Fourteenth Amendment's Due
Process Clause; or in personal, marital, familial, and sexual privacy said to
be protected by the Bill of Rights or its penumbras, see Griswold v.
Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972);
id., at 460 (WHITE, J., concurring in result); or among those rights reserved
to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S., at
486 (Goldberg, J., concurring). Before addressing this claim, we feel it
desirable briefly to survey, in several aspects, the history of abortion, for
such insight as that history may afford us, and then to examine the state
purposes and interests behind the criminal abortion laws.
VI
It perhaps is not generally appreciated that the restrictive criminal abortion
laws in effect in a majority of States today are of relatively recent vintage.
Those laws, generally proscribing abortion or its attempt at any time during
pregnancy except when necessary to preserve the pregnant woman's life,
are not of ancient or even of common-law origin. Instead, they derive from
statutory changes effected, for the most part, in the latter half of the 19th
century. [410 U.S. 113, 130]
1. Ancient attitudes. These are not capable of precise determination. We are
told that at the time of the Persian Empire abortifacients were known and
that criminal abortions were severely punished. 8 We are also told, however,
that abortion was practiced in Greek times as well as in the Roman
Era, 9 and that "it was resorted to without scruple." 10 The Ephesian,
Soranos, often described as the greatest of the ancient gynecologists,
appears to have been generally opposed to Rome's prevailing free-abortion
practices. He found it necessary to think first of the life of the mother, and he
resorted to abortion when, upon this standard, he felt the procedure
advisable. 11 Greek and Roman law afforded little protection to the unborn. If
abortion was prosecuted in some places, it seems to have been based on a
concept of a violation of the father's right to his offspring. Ancient religion did
not bar abortion. 12
2. The Hippocratic Oath. What then of the famous Oath that has stood so
long as the ethical guide of the medical profession and that bears the name
of the great Greek (460(?)-377(?) B. C.), who has been described [410 U.S.
113, 131] as the Father of Medicine, the "wisest and the greatest
practitioner of his art," and the "most important and most complete medical
personality of antiquity," who dominated the medical schools of his time, and
who typified the sum of the medical knowledge of the past? 13 The Oath
varies somewhat according to the particular translation, but in any translation
the content is clear: "I will give no deadly medicine to anyone if asked, nor
suggest any such counsel; and in like manner I will not give to a woman a
pessary to produce abortion," 14 or "I will neither give a deadly drug to
anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I
will not give to a woman an abortive remedy." 15
Although the Oath is not mentioned in any of the principal briefs in this case
or in Doe v. Bolton, post, p. 179, it represents the apex of the development
of strict ethical concepts in medicine, and its influence endures to this day.
Why did not the authority of Hippocrates dissuade abortion practice in his
time and that of Rome? The late Dr. Edelstein provides us with a
theory: 16 The Oath was not uncontested even in Hippocrates' day; only the
Pythagorean school of philosophers frowned upon the related act of suicide.
Most Greek thinkers, on the other hand, commended abortion, at least prior
to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For
the Pythagoreans, however, it was a matter of dogma. For them the embryo
was animate from the moment of conception, and abortion meant
destruction of a living being. The abortion clause of the Oath, therefore,
"echoes Pythagorean doctrines," [410 U.S. 113, 132] and "[i]n no other
stratum of Greek opinion were such views held or proposed in the same
spirit of uncompromising austerity."17
Dr. Edelstein then concludes that the Oath originated in a group representing
only a small segment of Greek opinion and that it certainly was not accepted
by all ancient physicians. He points out that medical writings down to Galen
(A. D. 130-200) "give evidence of the violation of almost every one of its
injunctions." 18 But with the end of antiquity a decided change took place.
Resistance against suicide and against abortion became common. The Oath
came to be popular. The emerging teachings of Christianity were in
agreement with the Pythagorean ethic. The Oath "became the nucleus of all
medical ethics" and "was applauded as the embodiment of truth." Thus,
suggests Dr. Edelstein, it is "a Pythagorean manifesto and not the
expression of an absolute standard of medical conduct." 19
This, it seems to us, is a satisfactory and acceptable explanation of the
Hippocratic Oath's apparent rigidity. It enables us to understand, in historical
context, a long-accepted and revered statement of medical ethics.
3. The common law. It is undisputed that at common law, abortion performed
before "quickening" - the first recognizable movement of the fetus in utero,
appearing usually from the 16th to the 18th week of pregnancy 20 - was not
an indictable offense. 21 The absence [410 U.S. 113, 133] of a common-
law crime for pre-quickening abortion appears to have developed from a
confluence of earlier philosophical, theological, and civil and canon law
concepts of when life begins. These disciplines variously approached the
question in terms of the point at which the embryo or fetus became "formed"
or recognizably human, or in terms of when a "person" came into being, that
is, infused with a "soul" or "animated." A loose consensus evolved in early
English law that these events occurred at some point between conception
and live birth. 22 This was "mediate animation." Although [410 U.S. 113,
134] Christian theology and the canon law came to fix the point of
animation at 40 days for a male and 80 days for a female, a view that
persisted until the 19th century, there was otherwise little agreement about
the precise time of formation or animation. There was agreement, however,
that prior to this point the fetus was to be regarded as part of the mother, and
its destruction, therefore, was not homicide. Due to continued uncertainty
about the precise time when animation occurred, to the lack of any empirical
basis for the 40-80-day view, and perhaps to Aquinas' definition of
movement as one of the two first principles of life, Bracton focused upon
quickening as the critical point. The significance of quickening was echoed
by later common-law scholars and found its way into the received common
law in this country.
Whether abortion of a quick fetus was a felony at common law, or even a
lesser crime, is still disputed. Bracton, writing early in the 13th century,
thought it homicide. 23 But the later and predominant view, following the
great common-law scholars, has been that it was, at most, a lesser offense.
In a frequently cited [410 U.S. 113, 135] passage, Coke took the position
that abortion of a woman "quick with childe" is "a great misprision, and no
murder." 24 Blackstone followed, saying that while abortion after quickening
had once been considered manslaughter (though not murder), "modern law"
took a less severe view. 25 A recent review of the common-law precedents
argues, however, that those precedents contradict Coke and that even post-
quickening abortion was never established as a common-law crime. 26 This
is of some importance because while most American courts ruled, in holding
or dictum, that abortion of an unquickened fetus was not criminal under their
received common law, 27 others followed Coke in stating that abortion [410
U.S. 113, 136] of a quick fetus was a "misprision," a term they translated to
mean "misdemeanor." 28 That their reliance on Coke on this aspect of the
law was uncritical and, apparently in all the reported cases, dictum (due
probably to the paucity of common-law prosecutions for post-quickening
abortion), makes it now appear doubtful that abortion was ever firmly
established as a common-law crime even with respect to the destruction of a
quick fetus.
4. The English statutory law. England's first criminal abortion statute, Lord
Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a
quick fetus, 1, a capital crime, but in 2 it provided lesser penalties for the
felony of abortion before quickening, and thus preserved the "quickening"
distinction. This contrast was continued in the general revision of 1828, 9
Geo. 4, c. 31, 13. It disappeared, however, together with the death penalty,
in 1837, 7 Will. 4 & 1 Vict., c. 85. 6, and did not reappear in the Offenses
Against the Person Act of 1861, 24 & 25 Vict., c. 100, 59, that formed the
core of English anti-abortion law until the liberalizing reforms of 1967. In
1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, came into
being. Its emphasis was upon the destruction of "the life of a child capable of
being born alive." It made a willful act performed with the necessary intent a
felony. It contained a proviso that one was not to be [410 U.S. 113,
137] found guilty of the offense "unless it is proved that the act which
caused the death of the child was not done in good faith for the purpose only
of preserving the life of the mother."
A seemingly notable development in the English law was the case of Rex v.
Bourne, 1939. 1 K. B. 687. This case apparently answered in the affirmative
the question whether an abortion necessary to preserve the life of the
pregnant woman was excepted from the criminal penalties of the 1861 Act.
In his instructions to the jury, Judge Macnaghten referred to the 1929 Act,
and observed that that Act related to "the case where a child is killed by a
wilful act at the time when it is being delivered in the ordinary course of
nature." Id., at 691. He concluded that the 1861 Act's use of the word
"unlawfully," imported the same meaning expressed by the specific proviso
in the 1929 Act, even though there was no mention of preserving the
mother's life in the 1861 Act. He then construed the phrase "preserving the
life of the mother" broadly, that is, "in a reasonable sense," to include a
serious and permanent threat to the mother's health, and instructed the jury
to acquit Dr. Bourne if it found he had acted in a good-faith belief that the
abortion was necessary for this purpose. Id., at 693-694. The jury did acquit.
Recently, Parliament enacted a new abortion law. This is the Abortion Act of
1967, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform
an abortion where two other licensed physicians agree (a) "that the
continuance of the pregnancy would involve risk to the life of the pregnant
woman, or of injury to the physical or mental health of the pregnant woman
or any existing children of her family, greater than if the pregnancy were
terminated," or (b) "that there is a substantial risk that if the child were born it
would suffer from such physical or mental abnormalities as [410 U.S. 113,
138] to be seriously handicapped." The Act also provides that, in making
this determination, "account may be taken of the pregnant woman's actual or
reasonably foreseeable environment." It also permits a physician, without the
concurrence of others, to terminate a pregnancy where he is of the good-
faith opinion that the abortion "is immediately necessary to save the life or to
prevent grave permanent injury to the physical or mental health of the
pregnant woman."
5. The American law. In this country, the law in effect in all but a few States
until mid-19th century was the pre-existing English common law.
Connecticut, the first State to enact abortion legislation, adopted in 1821 that
part of Lord Ellenborough's Act that related to a woman "quick with
child." 29 The death penalty was not imposed. Abortion before quickening
was made a crime in that State only in 1860. 30 In 1828, New York enacted
legislation 31 that, in two respects, was to serve as a model for early anti-
abortion statutes. First, while barring destruction of an unquickened fetus as
well as a quick fetus, it made the former only a misdemeanor, but the latter
second-degree manslaughter. Second, it incorporated a concept of
therapeutic abortion by providing that an abortion was excused if it "shall
have been necessary to preserve the life of such mother, or shall have been
advised by two physicians to be necessary for such purpose." By 1840,
when Texas had received the common law, 32 only eight American
States [410 U.S. 113, 139] had statutes dealing with abortion. 33 It was not
until after the War Between the States that legislation began generally to
replace the common law. Most of these initial statutes dealt severely with
abortion after quickening but were lenient with it before quickening. Most
punished attempts equally with completed abortions. While many statutes
included the exception for an abortion thought by one or more physicians to
be necessary to save the mother's life, that provision soon disappeared and
the typical law required that the procedure actually be necessary for that
purpose.
Gradually, in the middle and late 19th century the quickening distinction
disappeared from the statutory law of most States and the degree of the
offense and the penalties were increased. By the end of the 1950's, a large
majority of the jurisdictions banned abortion, however and whenever
performed, unless done to save or preserve the life of the mother. 34 The
exceptions, Alabama and the District of Columbia, permitted abortion to
preserve the mother's health. 35 Three States permitted abortions that were
not "unlawfully" performed or that were not "without lawful justification,"
leaving interpretation of those standards to the courts. 36 In [410 U.S. 113,
140] the past several years, however, a trend toward liberalization of
abortion statutes has resulted in adoption, by about one-third of the States,
of less stringent laws, most of them patterned after the ALI Model Penal
Code, 230.3, 37 set forth as Appendix B to the opinion in Doe v. Bolton, post,
p. 205.
It is thus apparent that at common law, at the time of the adoption of our
Constitution, and throughout the major portion of the 19th century, abortion
was viewed with less disfavor than under most American statutes currently in
effect. Phrasing it another way, a woman enjoyed a substantially broader
right to terminate a pregnancy than she does in most States today. At least
with respect to the early stage of pregnancy, and very possibly without such
a limitation, the opportunity [410 U.S. 113, 141] to make this choice was
present in this country well into the 19th century. Even later, the law
continued for some time to treat less punitively an abortion procured in early
pregnancy.
6. The position of the American Medical Association. The anti-abortion mood
prevalent in this country in the late 19th century was shared by the medical
profession. Indeed, the attitude of the profession may have played a
significant role in the enactment of stringent criminal abortion legislation
during that period.
An AMA Committee on Criminal Abortion was appointed in May 1857. It
presented its report, 12 Trans. of the Am. Med. Assn. 73-78 (1859), to the
Twelfth Annual Meeting. That report observed that the Committee had been
appointed to investigate criminal abortion "with a view to its general
suppression." It deplored abortion and its frequency and it listed three
causes of "this general demoralization":
"The first of these causes is a wide-spread popular ignorance of the true
character of the crime - a belief, even among mothers themselves, that the
foetus is not alive till after the period of quickening.
"The second of the agents alluded to is the fact that the profession
themselves are frequently supposed careless of foetal life . . . .
"The third reason of the frightful extent of this crime is found in the grave
defects of our laws, both common and statute, as regards the independent
and actual existence of the child before birth, as a living being. These errors,
which are sufficient in most instances to prevent conviction, are based, and
only based, upon mistaken and exploded medical dogmas. With strange
inconsistency, the law fully acknowledges the foetus in utero and its inherent
rights, for civil purposes; while personally and as criminally affected, it fails to
recognize it, [410 U.S. 113, 142] and to its life as yet denies all protection."
Id., at 75-76.
The Committee then offered, and the Association adopted, resolutions
protesting "against such unwarrantable destruction of human life," calling
upon state legislatures to revise their abortion laws, and requesting the
cooperation of state medical societies "in pressing the subject." Id., at 28,
78.
In 1871 a long and vivid report was submitted by the Committee on Criminal
Abortion. It ended with the observation, "We had to deal with human life. In a
matter of less importance we could entertain no compromise. An honest
judge on the bench would call things by their proper names. We could do no
less." 22 Trans. of the Am. Med. Assn. 258 (1871). It proffered resolutions,
adopted by the Association, id., at 38-39, recommending, among other
things, that it "be unlawful and unprofessional for any physician to induce
abortion or premature labor, without the concurrent opinion of at least one
respectable consulting physician, and then always with a view to the safety
of the child - if that be possible," and calling "the attention of the clergy of all
denominations to the perverted views of morality entertained by a large class
of females - aye, and men also, on this important question."
Except for periodic condemnation of the criminal abortionist, no further
formal AMA action took place until 1967. In that year, the Committee on
Human Reproduction urged the adoption of a stated policy of opposition to
induced abortion, except when there is "documented medical evidence" of a
threat to the health or life of the mother, or that the child "may be born with
incapacitating physical deformity or mental deficiency," or that a pregnancy
"resulting from legally established statutory or forcible rape or incest may
constitute a threat to the mental or physical health of the [410 U.S. 113,
143] patient," two other physicians "chosen because of their recognized
professional competence have examined the patient and have concurred in
writing," and the procedure "is performed in a hospital accredited by the
Joint Commission on Accreditation of Hospitals." The providing of medical
information by physicians to state legislatures in their consideration of
legislation regarding therapeutic abortion was "to be considered consistent
with the principles of ethics of the American Medical Association." This
recommendation was adopted by the House of Delegates. Proceedings of
the AMA House of Delegates 40-51 (June 1967).
In 1970, after the introduction of a variety of proposed resolutions, and of a
report from its Board of Trustees, a reference committee noted "polarization
of the medical profession on this controversial issue"; division among those
who had testified; a difference of opinion among AMA councils and
committees; "the remarkable shift in testimony" in six months, felt to be
influenced "by the rapid changes in state laws and by the judicial decisions
which tend to make abortion more freely available;" and a feeling "that this
trend will continue." On June 25, 1970, the House of Delegates adopted
preambles and most of the resolutions proposed by the reference
committee. The preambles emphasized "the best interests of the patient,"
"sound clinical judgment," and "informed patient consent," in contrast to
"mere acquiescence to the patient's demand." The resolutions asserted that
abortion is a medical procedure that should be performed by a licensed
physician in an accredited hospital only after consultation with two other
physicians and in conformity with state law, and that no party to the
procedure should be required to violate personally held moral
principles. 38 Proceedings [410 U.S. 113, 144] of the AMA House of
Delegates 220 (June 1970). The AMA Judicial Council rendered a
complementary opinion. 39
7. The position of the American Public Health Association. In October 1970,
the Executive Board of the APHA adopted Standards for Abortion Services.
These were five in number:
"a. Rapid and simple abortion referral must be readily available through state
and local public [410 U.S. 113, 145] health departments, medical societies,
or other nonprofit organizations.
"b. An important function of counselling should be to simplify and expedite
the provision of abortion services; it should not delay the obtaining of these
services.
"c. Psychiatric consultation should not be mandatory. As in the case of other
specialized medical services, psychiatric consultation should be sought for
definite indications and not on a routine basis.
"d. A wide range of individuals from appropriately trained, sympathetic
volunteers to highly skilled physicians may qualify as abortion counselors.
"e. Contraception and/or sterilization should be discussed with each abortion
patient." Recommended Standards for Abortion Services, 61 Am. J. Pub.
Health 396 (1971).
Among factors pertinent to life and health risks associated with abortion
were three that "are recognized as important":
"a. the skill of the physician,
"b. the environment in which the abortion is performed, and above all
"c. the duration of pregnancy, as determined by uterine size and confirmed
by menstrual history." Id., at 397.
It was said that "a well-equipped hospital" offers more protection "to cope
with unforeseen difficulties than an office or clinic without such
resources. . . . The factor of gestational age is of overriding importance."
Thus, it was recommended that abortions in the second trimester and early
abortions in the presence of existing medical complications be performed in
hospitals as inpatient procedures. For pregnancies in the first trimester, [410
U.S. 113, 146] abortion in the hospital with or without overnight stay "is
probably the safest practice." An abortion in an extramural facility, however,
is an acceptable alternative "provided arrangements exist in advance to
admit patients promptly if unforeseen complications develop." Standards for
an abortion facility were listed. It was said that at present abortions should
be performed by physicians or osteopaths who are licensed to practice and
who have "adequate training." Id., at 398.
8. The position of the American Bar Association. At its meeting in February
1972 the ABA House of Delegates approved, with 17 opposing votes, the
Uniform Abortion Act that had been drafted and approved the preceding
August by the Conference of Commissioners on Uniform State Laws. 58 A.
B. A. J. 380 (1972). We set forth the Act in full in the margin. 40 The [410
U.S. 113, 147] Conference has appended an enlightening Prefatory
Note. 41
VII
Three reasons have been advanced to explain historically the enactment of
criminal abortion laws in the 19th century and to justify their continued
existence. [410 U.S. 113, 148]
It has been argued occasionally that these laws were the product of a
Victorian social concern to discourage illicit sexual conduct. Texas, however,
does not advance this justification in the present case, and it appears that no
court or commentator has taken the argument seriously. 42 The appellants
and amici contend, moreover, that this is not a proper state purpose at all
and suggest that, if it were, the Texas statutes are overbroad in protecting it
since the law fails to distinguish between married and unwed mothers.
A second reason is concerned with abortion as a medical procedure. When
most criminal abortion laws were first enacted, the procedure was a
hazardous one for the woman. 43 This was particularly true prior to the [410
U.S. 113, 149] development of antisepsis. Antiseptic techniques, of course,
were based on discoveries by Lister, Pasteur, and others first announced in
1867, but were not generally accepted and employed until about the turn of
the century. Abortion mortality was high. Even after 1900, and perhaps until
as late as the development of antibiotics in the 1940's, standard modern
techniques such as dilation and curettage were not nearly so safe as they
are today. Thus, it has been argued that a State's real concern in enacting a
criminal abortion law was to protect the pregnant woman, that is, to restrain
her from submitting to a procedure that placed her life in serious jeopardy.
Modern medical techniques have altered this situation. Appellants and
various amici refer to medical data indicating that abortion in early
pregnancy, that is, prior to the end of the first trimester, although not without
its risk, is now relatively safe. Mortality rates for women undergoing early
abortions, where the procedure is legal, appear to be as low as or lower than
the rates for normal childbirth. 44 Consequently, any interest of the State in
protecting the woman from an inherently hazardous procedure, except when
it would be equally dangerous for her to forgo it, has largely disappeared. Of
course, important state interests in the areas of health and medical
standards do remain. [410 U.S. 113, 150] The State has a legitimate
interest in seeing to it that abortion, like any other medical procedure, is
performed under circumstances that insure maximum safety for the patient.
This interest obviously extends at least to the performing physician and his
staff, to the facilities involved, to the availability of after-care, and to
adequate provision for any complication or emergency that might arise. The
prevalence of high mortality rates at illegal "abortion mills" strengthens,
rather than weakens, the State's interest in regulating the conditions under
which abortions are performed. Moreover, the risk to the woman increases
as her pregnancy continues. Thus, the State retains a definite interest in
protecting the woman's own health and safety when an abortion is proposed
at a late stage of pregnancy.
The third reason is the State's interest - some phrase it in terms of duty - in
protecting prenatal life. Some of the argument for this justification rests on
the theory that a new human life is present from the moment of
conception. 45 The State's interest and general obligation to protect life then
extends, it is argued, to prenatal life. Only when the life of the pregnant
mother herself is at stake, balanced against the life she carries within her,
should the interest of the embryo or fetus not prevail. Logically, of course, a
legitimate state interest in this area need not stand or fall on acceptance of
the belief that life begins at conception or at some other point prior to live
birth. In assessing the State's interest, recognition may be given to the less
rigid claim that as long as at least potential life is involved, the State may
assert interests beyond the protection of the pregnant woman alone. [410
U.S. 113, 151]
Parties challenging state abortion laws have sharply disputed in some courts
the contention that a purpose of these laws, when enacted, was to protect
prenatal life. 46 Pointing to the absence of legislative history to support the
contention, they claim that most state laws were designed solely to protect
the woman. Because medical advances have lessened this concern, at least
with respect to abortion in early pregnancy, they argue that with respect to
such abortions the laws can no longer be justified by any state interest.
There is some scholarly support for this view of original purpose. 47 The few
state courts called upon to interpret their laws in the late 19th and early 20th
centuries did focus on the State's interest in protecting the woman's health
rather than in preserving the embryo and fetus. 48 Proponents of this view
point out that in many States, including Texas, 49 by statute or judicial
interpretation, the pregnant woman herself could not be prosecuted for self-
abortion or for cooperating in an abortion performed upon her by
another. 50 They claim that adoption of the "quickening" distinction through
received common [410 U.S. 113, 152] law and state statutes tacitly
recognizes the greater health hazards inherent in late abortion and impliedly
repudiates the theory that life begins at conception.
It is with these interests, and the weight to be attached to them, that this
case is concerned.
VIII
The Constitution does not explicitly mention any right of privacy. In a line of
decisions, however, going back perhaps as far as Union Pacific R. Co. v.
Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of
personal privacy, or a guarantee of certain areas or zones of privacy, does
exist under the Constitution. In varying contexts, the Court or individual
Justices have, indeed, found at least the roots of that right in the First
Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth
and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz v. United
States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S.
616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928)
(Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v.
Connecticut, 381 U.S., at 484 -485; in the Ninth Amendment, id., at 486
(Goldberg, J., concurring); or in the concept of liberty guaranteed by the first
section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S.
390, 399 (1923). These decisions make it clear that only personal rights that
can be deemed "fundamental" or "implicit in the concept of ordered liberty,"
Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this
guarantee of personal privacy. They also make it clear that the right has
some extension to activities relating to marriage, Loving v. Virginia, 388 U.S.
1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541 -542
(1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453 -454; id., at 460,
463-465 [410 U.S. 113, 153] (WHITE, J., concurring in result); family
relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child
rearing and education, Pierce v. Society of Sisters, 268 U.S. 510,
535 (1925), Meyer v. Nebraska, supra.
This right of privacy, whether it be founded in the Fourteenth Amendment's
concept of personal liberty and restrictions upon state action, as we feel it is,
or, as the District Court determined, in the Ninth Amendment's reservation of
rights to the people, is broad enough to encompass a woman's decision
whether or not to terminate her pregnancy. The detriment that the State
would impose upon the pregnant woman by denying this choice altogether is
apparent. Specific and direct harm medically diagnosable even in early
pregnancy may be involved. Maternity, or additional offspring, may force
upon the woman a distressful life and future. Psychological harm may be
imminent. Mental and physical health may be taxed by child care. There is
also the distress, for all concerned, associated with the unwanted child, and
there is the problem of bringing a child into a family already unable,
psychologically and otherwise, to care for it. In other cases, as in this one,
the additional difficulties and continuing stigma of unwed motherhood may
be involved. All these are factors the woman and her responsible physician
necessarily will consider in consultation.
On the basis of elements such as these, appellant and some amici argue
that the woman's right is absolute and that she is entitled to terminate her
pregnancy at whatever time, in whatever way, and for whatever reason she
alone chooses. With this we do not agree. Appellant's arguments that Texas
either has no valid interest at all in regulating the abortion decision, or no
interest strong enough to support any limitation upon the woman's sole
determination, are unpersuasive. The [410 U.S. 113, 154] Court's decisions
recognizing a right of privacy also acknowledge that some state regulation in
areas protected by that right is appropriate. As noted above, a State may
properly assert important interests in safeguarding health, in maintaining
medical standards, and in protecting potential life. At some point in
pregnancy, these respective interests become sufficiently compelling to
sustain regulation of the factors that govern the abortion decision. The
privacy right involved, therefore, cannot be said to be absolute. In fact, it is
not clear to us that the claim asserted by some amici that one has an
unlimited right to do with one's body as one pleases bears a close
relationship to the right of privacy previously articulated in the Court's
decisions. The Court has refused to recognize an unlimited right of this kind
in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination);
Buck v. Bell, 274 U.S. 200 (1927) (sterilization).
We, therefore, conclude that the right of personal privacy includes the
abortion decision, but that this right is not unqualified and must be
considered against important state interests in regulation.
We note that those federal and state courts that have recently considered
abortion law challenges have reached the same conclusion. A majority, in
addition to the District Court in the present case, have held state laws
unconstitutional, at least in part, because of vagueness or because of
overbreadth and abridgment of rights. Abele v. Markle, 342 F. Supp. 800
(Conn. 1972), appeal docketed, No. 72-56; Abele v. Markle, 351 F. Supp.
224 (Conn. 1972), appeal docketed, No. 72-730; Doe v. Bolton, 319 F. Supp.
1048 (ND Ga. 1970), appeal decided today, post, p. 179; Doe v. Scott, 321 F.
Supp. 1385 (ND Ill. 1971), appeal docketed, No. 70-105; Poe v. Menghini,
339 F. Supp. 986 (Kan. 1972); YWCA v. Kugler, 342 F. Supp. 1048 (NJ
1972); Babbitz v. McCann, [410 U.S. 113, 155] 310 F. Supp. 293 (ED Wis.
1970), appeal dismissed, 400 U.S. 1 (1970); People v. Belous, 71 Cal. 2d
954, 458 P.2d 194 (1969), cert. denied, 397 U.S. 915 (1970); State v.
Barquet, 262 So.2d 431 (Fla. 1972).
Others have sustained state statutes. Crossen v. Attorney General, 344 F.
Supp. 587 (ED Ky. 1972), appeal docketed, No. 72-256; Rosen v. Louisiana
State Board of Medical Examiners, 318 F. Supp. 1217 (ED La. 1970), appeal
docketed, No. 70-42; Corkey v. Edwards, 322 F. Supp. 1248 (WDNC 1971),
appeal docketed, No. 71-92; Steinberg v. Brown, 321 F. Supp. 741 (ND Ohio
1970); Doe v. Rampton (Utah 1971), appeal docketed, No. 71-5666;
Cheaney v. State, ___ Ind. ___, 285 N. E. 2d 265 (1972); Spears v. State,
257 So.2d 876 (Miss. 1972); State v. Munson, 86 S. D. 663, 201 N. W. 2d
123 (1972), appeal docketed, No. 72-631.
Although the results are divided, most of these courts have agreed that the
right of privacy, however based, is broad enough to cover the abortion
decision; that the right, nonetheless, is not absolute and is subject to some
limitations; and that at some point the state interests as to protection of
health, medical standards, and prenatal life, become dominant. We agree
with this approach.
Where certain "fundamental rights" are involved, the Court has held that
regulation limiting these rights may be justified only by a "compelling state
interest," Kramer v. Union Free School District, 395 U.S. 621, 627 (1969);
Shapiro v. Thompson, 394 U.S. 618, 634 (1969), Sherbert v. Verner, 374
U.S. 398, 406 (1963), and that legislative enactments must be narrowly
drawn to express only the legitimate state interests at stake. Griswold v.
Connecticut, 381 U.S., at 485 ; Aptheker v. Secretary of State, 378 U.S. 500,
508 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307 -308 (1940);
see [410 U.S. 113, 156] Eisenstadt v. Baird, 405 U.S., at 460 , 463-464
(WHITE, J., concurring in result).
In the recent abortion cases, cited above, courts have recognized these
principles. Those striking down state laws have generally scrutinized the
State's interests in protecting health and potential life, and have concluded
that neither interest justified broad limitations on the reasons for which a
physician and his pregnant patient might decide that she should have an
abortion in the early stages of pregnancy. Courts sustaining state laws have
held that the State's determinations to protect health or prenatal life are
dominant and constitutionally justifiable.
IX
The District Court held that the appellee failed to meet his burden of
demonstrating that the Texas statute's infringement upon Roe's rights was
necessary to support a compelling state interest, and that, although the
appellee presented "several compelling justifications for state presence in
the area of abortions," the statutes outstripped these justifications and swept
"far beyond any areas of compelling state interest." 314 F. Supp., at 1222-
1223. Appellant and appellee both contest that holding. Appellant, as has
been indicated, claims an absolute right that bars any state imposition of
criminal penalties in the area. Appellee argues that the State's determination
to recognize and protect prenatal life from and after conception constitutes a
compelling state interest. As noted above, we do not agree fully with either
formulation.
A. The appellee and certain amici argue that the fetus is a "person" within
the language and meaning of the Fourteenth Amendment. In support of this,
they outline at length and in detail the well-known facts of fetal development.
If this suggestion of personhood is established, the appellant's case, of
course, collapses, [410 U.S. 113, 157] for the fetus' right to life would then
be guaranteed specifically by the Amendment. The appellant conceded as
much on reargument. 51 On the other hand, the appellee conceded on
reargument 52that no case could be cited that holds that a fetus is a person
within the meaning of the Fourteenth Amendment.
The Constitution does not define "person" in so many words. Section 1 of
the Fourteenth Amendment contains three references to "person." The first,
in defining "citizens," speaks of "persons born or naturalized in the United
States." The word also appears both in the Due Process Clause and in the
Equal Protection Clause. "Person" is used in other places in the Constitution:
in the listing of qualifications for Representatives and Senators, Art. I, 2, cl.
2, and 3, cl. 3; in the Apportionment Clause, Art. I, 2, cl. 3; 53 in the
Migration and Importation provision, Art. I, 9, cl. 1; in the Emolument Clause,
Art. I, 9, cl. 8; in the Electors provisions, Art. II, 1, cl. 2, and the superseded
cl. 3; in the provision outlining qualifications for the office of President, Art. II,
1, cl. 5; in the Extradition provisions, Art. IV, 2, cl. 2, and the superseded
Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second
Amendments, as well as in 2 and 3 of the Fourteenth Amendment. But in
nearly all these instances, the use of the word is such that it has application
only postnatally. None indicates, with any assurance, that it has any possible
pre-natal application. 54 [410 U.S. 113, 158]
All this, together with our observation, supra, that throughout the major
portion of the 19th century prevailing legal abortion practices were far freer
than they are today, persuades us that the word "person," as used in the
Fourteenth Amendment, does not include the unborn. 55 This is in accord
with the results reached in those few cases where the issue has been
squarely presented. McGarvey v. Magee-Womens Hospital, 340 F. Supp.
751 (WD Pa. 1972); Byrn v. New York City Health & Hospitals Corp., 31 N. Y.
2d 194, 286 N. E. 2d 887 (1972), appeal docketed, No. 72-434; Abele v.
Markle, 351 F. Supp. 224 (Conn. 1972), appeal docketed, No. 72-730. Cf.
Cheaney v. State, ___ Ind., at ___, 285 N. E. 2d, at 270; Montana v. Rogers,
278 F.2d 68, 72 (CA7 1960), aff'd sub nom. Montana v. Kennedy, 366 U.S.
308 (1961); Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d 617 (1970);
State v. Dickinson, 28 [410 U.S. 113, 159] Ohio St. 2d 65, 275 N. E. 2d 599
(1971). Indeed, our decision in United States v. Vuitch, 402 U.S. 62 (1971),
inferentially is to the same effect, for we there would not have indulged in
statutory interpretation favorable to abortion in specified circumstances if the
necessary consequence was the termination of life entitled to Fourteenth
Amendment protection.
This conclusion, however, does not of itself fully answer the contentions
raised by Texas, and we pass on to other considerations.
B. The pregnant woman cannot be isolated in her privacy. She carries an
embryo and, later, a fetus, if one accepts the medical definitions of the
developing young in the human uterus. See Dorland's Illustrated Medical
Dictionary 478-479, 547 (24th ed. 1965). The situation therefore is inherently
different from marital intimacy, or bedroom possession of obscene material,
or marriage, or procreation, or education, with which Eisenstadt and
Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively
concerned. As we have intimated above, it is reasonable and appropriate for
a State to decide that at some point in time another interest, that of health of
the mother or that of potential human life, becomes significantly involved.
The woman's privacy is no longer sole and any right of privacy she
possesses must be measured accordingly.
Texas urges that, apart from the Fourteenth Amendment, life begins at
conception and is present throughout pregnancy, and that, therefore, the
State has a compelling interest in protecting that life from and after
conception. We need not resolve the difficult question of when life begins.
When those trained in the respective disciplines of medicine, philosophy,
and theology are unable to arrive at any consensus, the judiciary, at this
point in the development of man's knowledge, is not in a position to
speculate as to the answer. [410 U.S. 113, 160]
It should be sufficient to note briefly the wide divergence of thinking on this
most sensitive and difficult question. There has always been strong support
for the view that life does not begin until live birth. This was the belief of the
Stoics. 56 It appears to be the predominant, though not the unanimous,
attitude of the Jewish faith. 57 It may be taken to represent also the position
of a large segment of the Protestant community, insofar as that can be
ascertained; organized groups that have taken a formal position on the
abortion issue have generally regarded abortion as a matter for the
conscience of the individual and her family. 58 As we have noted, the
common law found greater significance in quickening. Physicians and their
scientific colleagues have regarded that event with less interest and have
tended to focus either upon conception, upon live birth, or upon the interim
point at which the fetus becomes "viable," that is, potentially able to live
outside the mother's womb, albeit with artificial aid. 59 Viability is usually
placed at about seven months (28 weeks) but may occur earlier, even at 24
weeks. 60 The Aristotelian theory of "mediate animation," that held sway
throughout the Middle Ages and the Renaissance in Europe, continued to be
official Roman Catholic dogma until the 19th century, despite opposition to
this "ensoulment" theory from those in the Church who would recognize the
existence of life from [410 U.S. 113, 161] the moment of
conception. 61 The latter is now, of course, the official belief of the Catholic
Church. As one brief amicus discloses, this is a view strongly held by many
non-Catholics as well, and by many physicians. Substantial problems for
precise definition of this view are posed, however, by new embryological
data that purport to indicate that conception is a "process" over time, rather
than an event, and by new medical techniques such as menstrual extraction,
the "morning-after" pill, implantation of embryos, artificial insemination, and
even artificial wombs. 62
In areas other than criminal abortion, the law has been reluctant to endorse
any theory that life, as we recognize it, begins before live birth or to accord
legal rights to the unborn except in narrowly defined situations and except
when the rights are contingent upon live birth. For example, the traditional
rule of tort law denied recovery for prenatal injuries even though the child
was born alive. 63 That rule has been changed in almost every jurisdiction.
In most States, recovery is said to be permitted only if the fetus was viable,
or at least quick, when the injuries were sustained, though few [410 U.S.
113, 162] courts have squarely so held. 64 In a recent development,
generally opposed by the commentators, some States permit the parents of
a stillborn child to maintain an action for wrongful death because of prenatal
injuries. 65 Such an action, however, would appear to be one to vindicate
the parents' interest and is thus consistent with the view that the fetus, at
most, represents only the potentiality of life. Similarly, unborn children have
been recognized as acquiring rights or interests by way of inheritance or
other devolution of property, and have been represented by guardians ad
litem. 66 Perfection of the interests involved, again, has generally been
contingent upon live birth. In short, the unborn have never been recognized
in the law as persons in the whole sense.
X restricting legal abortions to those "procured or attempted by medical advice
In view of all this, we do not agree that, by adopting one theory of life, Texas
may override the rights of the pregnant woman that are at stake. We repeat,
however, that the State does have an important and legitimate interest in
preserving and protecting the health of the pregnant woman, whether she be
a resident of the State or a nonresident who seeks medical consultation and
treatment there, and that it has still another important and legitimate interest
in protecting the potentiality of human life. These interests are separate and
distinct. Each grows in substantiality as the woman approaches [410 U.S.
113, 163] term and, at a point during pregnancy, each becomes
"compelling."
With respect to the State's important and legitimate interest in the health of
the mother, the "compelling" point, in the light of present medical knowledge,
is at approximately the end of the first trimester. This is so because of the
now-established medical fact, referred to above at 149, that until the end of
the first trimester mortality in abortion may be less than mortality in normal
childbirth. It follows that, from and after this point, a State may regulate the
abortion procedure to the extent that the regulation reasonably relates to the
preservation and protection of maternal health. Examples of permissible
state regulation in this area are requirements as to the qualifications of the
person who is to perform the abortion; as to the licensure of that person; as
to the facility in which the procedure is to be performed, that is, whether it
must be a hospital or may be a clinic or some other place of less-than-
hospital status; as to the licensing of the facility; and the like.
This means, on the other hand, that, for the period of pregnancy prior to this
"compelling" point, the attending physician, in consultation with his patient, is
free to determine, without regulation by the State, that, in his medical
judgment, the patient's pregnancy should be terminated. If that decision is
reached, the judgment may be effectuated by an abortion free of
interference by the State.
With respect to the State's important and legitimate interest in potential life,
the "compelling" point is at viability. This is so because the fetus then
presumably has the capability of meaningful life outside the mother's womb.
State regulation protective of fetal life after viability thus has both logical and
biological justifications. If the State is interested in protecting fetal life after
viability, it may go so far as to proscribe abortion [410 U.S. 113, 164] during
that period, except when it is necessary to preserve the life or health of the
mother.
Measured against these standards, Art. 1196 of the Texas Penal Code, in
for the purpose of saving the life of the mother," sweeps too broadly. The
statute makes no distinction between abortions performed early in
pregnancy and those performed later, and it limits to a single reason,
"saving" the mother's life, the legal justification for the procedure. The
statute, therefore, cannot survive the constitutional attack made upon it here.
This conclusion makes it unnecessary for us to consider the additional
challenge to the Texas statute asserted on grounds of vagueness. See
United States v. Vuitch, 402 U.S., at 67 -72.
XI
To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, that excepts
from criminality only a life-saving procedure on behalf of the mother, without
regard to pregnancy stage and without recognition of the other interests
involved, is violative of the Due Process Clause of the Fourteenth
Amendment.
(a) For the stage prior to approximately the end of the first trimester, the
abortion decision and its effectuation must be left to the medical judgment of
the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester,
the State, in promoting its interest in the health of the mother, may, if it
chooses, regulate the abortion procedure in ways that are reasonably
related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in
the potentiality of human life [410 U.S. 113, 165] may, if it chooses,
regulate, and even proscribe, abortion except where it is necessary, in
appropriate medical judgment, for the preservation of the life or health of the
mother.
2. The State may define the term "physician," as it has been employed in the
preceding paragraphs of this Part XI of this opinion, to mean only a
physician currently licensed by the State, and may proscribe any abortion by
a person who is not a physician as so defined.
In Doe v. Bolton, post, p. 179, procedural requirements contained in one of
the modern abortion statutes are considered. That opinion and this one, of
course, are to be read together. 67
This holding, we feel, is consistent with the relative weights of the respective
interests involved, with the lessons and examples of medical and legal
history, with the lenity of the common law, and with the demands of the
profound problems of the present day. The decision leaves the State free to
place increasing restrictions on abortion as the period of pregnancy
lengthens, so long as those restrictions are tailored to the recognized state
interests. The decision vindicates the right of the physician to administer
medical treatment according to his professional judgment up to the points
where important [410 U.S. 113, 166] state interests provide compelling
justifications for intervention. Up to those points, the abortion decision in all
its aspects is inherently, and primarily, a medical decision, and basic
responsibility for it must rest with the physician. If an individual practitioner
abuses the privilege of exercising proper medical judgment, the usual
remedies, judicial and intra-professional, are available.
XII
Our conclusion that Art. 1196 is unconstitutional means, of course, that the
Texas abortion statutes, as a unit, must fall. The exception of Art. 1196
cannot be struck down separately, for then the State would be left with a
statute proscribing all abortion procedures no matter how medically urgent
the case.
Although the District Court granted appellant Roe declaratory relief, it
stopped short of issuing an injunction against enforcement of the Texas
statutes. The Court has recognized that different considerations enter into a
federal court's decision as to declaratory relief, on the one hand, and
injunctive relief, on the other. Zwickler v. Koota, 389 U.S. 241, 252 -255
(1967); Dombrowski v. Pfister, 380 U.S. 479 (1965). We are not dealing with
a statute that, on its face, appears to abridge free expression, an area of
particular concern under Dombrowski and refined in Younger v. Harris, 401
U.S., at 50 .
We find it unnecessary to decide whether the District Court erred in
withholding injunctive relief, for we assume the Texas prosecutorial
authorities will give full credence to this decision that the present criminal
abortion statutes of that State are unconstitutional.
The judgment of the District Court as to intervenor Hallford is reversed, and
Dr. Hallford's complaint in intervention is dismissed. In all other respects, the
judgment [410 U.S. 113, 167] of the District Court is affirmed. Costs are
allowed to the appellee.
It is so ordered.
[For concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 207.]
[For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 209.]
[For dissenting opinion of MR. JUSTICE WHITE, see post, p. 221.]
Footnotes
[ Footnote 1 ] "Article 1191. Abortion
"If any person shall designedly administer to a pregnant woman or knowingly
procure to be administered with her consent any drug or medicine, or shall
use towards her any violence or means whatever externally or internally
applied, and thereby procure an abortion, he shall be confined in the
penitentiary not less than two nor more than five years; if it be done without
her consent, the punishment shall be doubled. By `abortion' is meant that
the life of the fetus or embryo shall be destroyed in the woman's womb or
that a premature birth thereof be caused.
"Art. 1192. Furnishing the means
"Whoever furnishes the means for procuring an abortion knowing the
purpose intended is guilty as an accomplice.
"Art. 1193. Attempt at abortion
"If the means used shall fail to produce an abortion, the offender is
nevertheless guilty of an attempt to produce abortion, provided [410 U.S.
113, 118] it be shown that such means were calculated to produce that
result, and shall be fined not less than one hundred nor more than one
thousand dollars.
"Art. 1194. Murder in producing abortion
"If the death of the mother is occasioned by an abortion so produced or by
an attempt to effect the same it is murder."
"Art. 1196. By medical advice
"Nothing in this chapter applies to an abortion procured or attempted by
medical advice for the purpose of saving the life of the mother."
The foregoing Articles, together with Art. 1195, compose Chapter 9 of Title
15 of the Penal Code. Article 1195, not attacked here, reads:
"Art. 1195. Destroying unborn child
"Whoever shall during parturition of the mother destroy the vitality or life in a
child in a state of being born and before actual birth, which child would
otherwise have been born alive, shall be confined in the penitentiary for life
or for not less than five years."
[ Footnote 2 ] Ariz. Rev. Stat. Ann. 13-211 (1956); Conn. Pub. Act No. 1 (May
1972 special session) (in 4 Conn. Leg. Serv. 677 (1972)), and Conn. Gen.
Stat. Rev. 53-29, 53-30 (1968) (or unborn child); Idaho Code 18-601 (1948);
Ill. Rev. Stat., c. 38, 23-1 (1971); Ind. Code 35-1-58-1 (1971); Iowa Code
701.1 (1971); Ky. Rev. Stat. 436.020 (1962); La. Rev. Stat. 37:1285 (6)
(1964) (loss of medical license) (but see 14:87 (Supp. 1972) containing no
exception for the life of the mother under the criminal statute); Me. Rev. Stat.
Ann., Tit. 17, 51 (1964); Mass. Gen. Laws Ann., c. 272, 19 (1970) (using the
term "unlawfully," construed to exclude an abortion to save the mother's life,
Kudish v. Bd. of Registration, 356 Mass. 98, 248 N. E. 2d 264 (1969)); Mich.
Comp. Laws 750.14 (1948); Minn. Stat. 617.18 (1971); Mo. Rev. Stat.
559.100 (1969); Mont. Rev. Codes Ann. 94-401 (1969); Neb. Rev. Stat. 28-
405 (1964); Nev. Rev. Stat. 200.220 (1967); N. H. Rev. Stat. Ann. 585:13
(1955); N. J. Stat. Ann. 2A:87-1 (1969) ("without lawful justification"); N. D.
Cent. Code 12-25-01, 12-25-02 (1960); Ohio Rev. Code Ann. 2901.16
(1953); Okla. Stat. Ann., Tit. 21, 861 (1972-1973 Supp.); Pa. Stat. Ann., Tit.
18, [410 U.S. 113, 119] 4718, 4719 (1963) ("unlawful"); R. I. Gen. Laws
Ann. 11-3-1 (1969); S. D. Comp. Laws Ann. 22-17-1 (1967); Tenn. Code
Ann. 39-301, 39-302 (1956); Utah Code Ann. 76-2-1, 76-2-2 (1953); Vt. Stat.
Ann., Tit. 13, 101 (1958); W. Va. Code Ann. 61-2-8 (1966); Wis. Stat. 940.04
(1969); Wyo. Stat. Ann. 6-77, 6-78 (1957).
[ Footnote 3 ] Long ago, a suggestion was made that the Texas statutes
were unconstitutionally vague because of definitional deficiencies. The Texas
Court of Criminal Appeals disposed of that suggestion peremptorily, saying
only,
"It is also insisted in the motion in arrest of judgment that the statute is
unconstitutional and void in that it does not sufficiently define or describe the
offense of abortion. We do not concur in respect to this question." Jackson v.
State, 55 Tex. Cr. R. 79, 89, 115 S. W. 262, 268 (1908).
The same court recently has held again that the State's abortion statutes are
not unconstitutionally vague or overbroad. Thompson v. State (Ct. Crim. App.
Tex. 1971), appeal docketed, No. 71-1200. The court held that "the State of
Texas has a compelling interest to protect fetal life"; that Art. 1191 "is
designed to protect fetal life"; that the Texas homicide statutes, particularly
Art. 1205 of the Penal Code, are intended to protect a person "in existence
by actual birth" and thereby implicitly recognize other human life that is not
"in existence by actual birth"; that the definition of human life is for the
legislature and not the courts; that Art. 1196 "is more definite than the District
of Columbia statute upheld in [United States v.] Vuitch" ( 402 U.S. 62 ); and
that the Texas statute "is [410 U.S. 113, 120] not vague and indefinite or
overbroad." A physician's abortion conviction was affirmed.
In Thompson, n. 2, the court observed that any issue as to the burden of
proof under the exemption of Art. 1196 "is not before us." But see Veevers v.
State, 172 Tex. Cr. R. 162, 168-169, 354 S. W. 2d 161, 166-167 (1962). Cf.
United States v. Vuitch, 402 U.S. 62, 69 -71 (1971).
[ Footnote 4 ] The name is a pseudonym.
[ Footnote 5 ] These names are pseudonyms.
[ Footnote 6 ] The appellee twice states in his brief that the hearing before
the District Court was held on July 22, 1970. Brief for Appellee 13. The
docket entries, App. 2, and the transcript, App. 76, reveal this to be an error.
The July date appears to be the time of the reporter's transcription. See App.
77.
[ Footnote 7 ] We need not consider what different result, if any, would follow
if Dr. Hallford's intervention were on behalf of a class. His complaint in
intervention does not purport to assert a class suit and makes no reference
to any class apart from an allegation that he "and others similarly situated"
must necessarily guess at the meaning of Art. 1196. His application for leave
to intervene goes somewhat further, for it asserts that plaintiff Roe does not
adequately protect the interest of the doctor "and the class of people who
are physicians . . . [and] the class of people who are . . . patients . . . ." The
leave application, however, is not the complaint. Despite the District Court's
statement to the contrary, 314 F. Supp., at 1225, we fail to perceive the
essentials of a class suit in the Hallford complaint.
[ Footnote 8 ] A. Castiglioni, A History of Medicine 84 (2d ed. 1947), E.
Krumbhaar, translator and editor (hereinafter Castiglioni).
[ Footnote 9 ] J. Ricci, The Genealogy of Gynaecology 52, 84, 113, 149 (2d
ed. 1950) (hereinafter Ricci); L. Lader, Abortion 75-77 (1966) (hereinafter
Lader); K. Niswander, Medical Abortion Practices in the United States, in
Abortion and the Law 37, 38-40 (D. Smith ed. 1967); G. Williams, The
Sanctity of Life and the Criminal Law 148 (1957) (hereinafter Williams); J.
Noonan, An Almost Absolute Value in History, in The Morality of Abortion 1,
3-7 (J. Noonan ed. 1970) (hereinafter Noonan); Quay, Justifiable Abortion -
Medical and Legal Foundations (pt. 2), 49 Geo. L. J. 395, 406-422 (1961)
(hereinafter Quay).
[ Footnote 10 ] L. Edelstein, The Hippocratic Oath 10 (1943) (hereinafter
Edelstein). But see Castiglioni 227.
[ Footnote 11 ] Edelstein 12; Ricci 113-114, 118-119; Noonan 5.
[ Footnote 12 ] Edelstein 13-14.
[ Footnote 13 ] Castiglioni 148.
[ Footnote 14 ] Id., at 154.
[ Footnote 15 ] Edelstein 3.
[ Footnote 16 ] Id., at 12, 15-18.
[ Footnote 17 ] Id., at 18; Lader 76.
[ Footnote 18 ] Edelstein 63.
[ Footnote 19 ] Id., at 64.
[ Footnote 20 ] Dorland's Illustrated Medical Dictionary 1261 (24th ed. 1965).
[ Footnote 21 ] E. Coke, Institutes III *50; 1 W. Hawkins, Pleas of the Crown,
c. 31, 16 (4th ed. 1762); 1 W. Blackstone, Commentaries *129-130; M. Hale,
Pleas of the Crown 433 (1st Amer. ed. 1847). For discussions of the role of
the quickening concept in English common law, see Lader 78; Noonan 223-
226; Means, The Law of New [410 U.S. 113, 133] York Concerning Abortion
and the Status of the Foetus, 1664-1968: A Case of Cessation of
Constitutionality (pt. 1), 14 N. Y. L. F. 411, 418-428 (1968) (hereinafter
Means I); Stern, Abortion: Reform and the Law, 59 J. Crim. L. C. & P. S. 84
(1968) (hereinafter Stern); Quay 430-432; Williams 152.
[ Footnote 22 ] Early philosophers believed that the embryo or fetus did not
become formed and begin to live until at least 40 days after conception for a
male, and 80 to 90 days for a female. See, for example, Aristotle, Hist. Anim.
7.3.583b; Gen. Anim. 2.3.736, 2.5.741; Hippocrates, Lib. de Nat. Puer., No.
10. Aristotle's thinking derived from his three-stage theory of life: vegetable,
animal, rational. The vegetable stage was reached at conception, the animal
at "animation," and the rational soon after live birth. This theory, together
with the 40/80 day view, came to be accepted by early Christian thinkers.
The theological debate was reflected in the writings of St. Augustine, who
made a distinction between embryo inanimatus, not yet endowed with a
soul, and embryo animatus. He may have drawn upon Exodus 21:22. At one
point, however, he expressed the view that human powers cannot determine
the point during fetal development at which the critical change occurs. See
Augustine, De Origine Animae 4.4 (Pub. Law 44.527). See also W. Reany,
The Creation of the Human Soul, c. 2 and 83-86 (1932); Huser, The Crime of
Abortion in Canon Law 15 (Catholic Univ. of America, Canon Law Studies
No. 162, Washington, D.C., 1942).
Galen, in three treatises related to embryology, accepted the thinking of
Aristotle and his followers. Quay 426-427. Later, Augustine on abortion was
incorporated by Gratian into the Decretum, published about 1140. Decretum
Magistri Gratiani 2.32.2.7 to 2.32.2.10, [410 U.S. 113, 134] in 1 Corpus
Juris Canonici 1122, 1123 (A. Friedburg, 2d ed. 1879). This Decretal and the
Decretals that followed were recognized as the definitive body of canon law
until the new Code of 1917.
For discussions of the canon-law treatment, see Means I, pp. 411-412;
Noonan 20-26; Quay 426-430; see also J. Noonan, Contraception: A History
of Its Treatment by the Catholic Theologians and Canonists 18-29 (1965).
[ Footnote 23 ] Bracton took the position that abortion by blow or poison was
homicide "if the foetus be already formed and animated, and particularly if it
be animated." 2 H. Bracton, De Legibus et Consuetudinibus Angliae 279 (T.
Twiss ed. 1879), or, as a later translation puts it, "if the foetus is already
formed or quickened, especially if it is quickened," 2 H. Bracton, On the
Laws and Customs of England 341 (S. Thorne ed. 1968). See Quay 431;
see also 2 Fleta 60-61 (Book 1, c. 23) (Selden Society ed. 1955).
[ Footnote 24 ] E. Coke, Institutes III *50.
[ Footnote 25 ] 1 W. Blackstone, Commentaries *129-130.
[ Footnote 26 ] Means, The Phoenix of Abortional Freedom: Is a Penumbral
or Ninth-Amendment Right About to Arise from the Nineteenth-Century
Legislative Ashes of a Fourteenth-Century Common-Law Liberty?, 17 N. Y.
L. F. 335 (1971) (hereinafter Means II). The author examines the two
principal precedents cited marginally by Coke, both contrary to his dictum,
and traces the treatment of these and other cases by earlier commentators.
He concludes that Coke, who himself participated as an advocate in an
abortion case in 1601, may have intentionally misstated the law. The author
even suggests a reason: Coke's strong feelings against abortion, coupled
with his determination to assert common-law (secular) jurisdiction to assess
penalties for an offense that traditionally had been an exclusively
ecclesiastical or canon-law crime. See also Lader 78-79, who notes that
some scholars doubt that the common law ever was applied to abortion; that
the English ecclesiastical courts seem to have lost interest in the problem
after 1527; and that the preamble to the English legislation of 1803, 43 Geo.
3, c. 58, 1, referred to in the text, infra, at 136, states that "no adequate
means have been hitherto provided for the prevention and punishment of
such offenses."
[ Footnote 27 ] Commonwealth v. Bangs, 9 Mass. 387, 388 (1812);
Commonwealth v. Parker, 50 Mass. (9 Metc.) 263, 265-266 (1845); State v.
Cooper, 22 N. J. L. 52, 58 (1849); Abrams v. Foshee, 3 Iowa 274, 278-280
(1856); Smith v. Gaffard, 31 Ala. 45, 51 (1857); Mitchell v. Commonwealth,
78 Ky. 204, 210 (1879); Eggart v. State, 40 Fla. [410 U.S. 113, 136] 527,
532, 25 So. 144, 145 (1898); State v. Alcorn, 7 Idaho 599, 606, 64 P. 1014,
1016 (1901); Edwards v. State, 79 Neb. 251, 252, 112 N. W. 611, 612
(1907); Gray v. State, 77 Tex. Cr. R. 221, 224, 178 S. W. 337, 338 (1915);
Miller v. Bennett, 190 Va. 162, 169, 56 S. E. 2d 217, 221 (1949). Contra,
Mills v. Commonwealth, 13 Pa. 631, 633 (1850); State v. Slagle, 83 N.C.
630, 632 (1880).
[ Footnote 28 ] See Smith v. State, 33 Me. 48, 55 (1851); Evans v. People,
49 N. Y. 86, 88 (1872); Lamb v. State, 67 Md. 524, 533, 10 A. 208 (1887).
[ Footnote 29 ] Conn. Stat., Tit. 20, 14 (1821).
[ Footnote 30 ] Conn. Pub. Acts, c. 71, 1 (1860).
[ Footnote 31 ] N. Y. Rev. Stat., pt. 4, c. 1, Tit. 2, Art. 1, 9, p. 661, and Tit. 6,
21, p. 694 (1829).
[ Footnote 32 ] Act of Jan. 20, 1840, 1, set forth in 2 H. Gammel, Laws of
Texas 177-178 (1898); see Grigsby v. Reib, 105 Tex. 597, 600, 153 S. W.
1124, 1125 (1913).
[ Footnote 33 ] The early statutes are discussed in Quay 435-438. See also
Lader 85-88; Stern 85-86; and Means II 375-376.
[ Footnote 34 ] Criminal abortion statutes in effect in the States as of 1961,
together with historical statutory development and important judicial
interpretations of the state statutes, are cited and quoted in Quay 447-520.
See Comment, A Survey of the Present Statutory and Case Law on Abortion:
The Contradictions and the Problems, 1972 U. Ill. L. F. 177, 179, classifying
the abortion statutes and listing 25 States as permitting abortion only if
necessary to save or preserve the mother's life.
[ Footnote 35 ] Ala. Code, Tit. 14, 9 (1958); D.C. Code Ann. 22-201 (1967).
[ Footnote 36 ] Mass. Gen. Laws Ann., c. 272, 19 (1970); N. J. Stat. Ann.
2A:87-1 (1969); Pa. Stat. Ann., Tit. 18, 4718, 4719 (1963).
[ Footnote 37 ] Fourteen States have adopted some form of the ALI statute.
See Ark. Stat. Ann. 41-303 to 41-310 (Supp. 1971); Calif. Health & Safety
Code 25950-25955.5 (Supp. 1972); Colo. Rev. Stat. Ann. 40-2-50 to 40-2-53
(Cum. Supp. 1967); Del. Code Ann., Tit. 24, 1790-1793 (Supp. 1972);
Florida Law of Apr. 13, 1972, c. 72-196, 1972 Fla. Sess. Law Serv., pp. 380-
382; Ga. Code 26-1201 to 26-1203 (1972); Kan. Stat. Ann. 21-3407 (Supp.
1971); Md. Ann. Code, Art. 43, 137-139 (1971); Miss. Code Ann. 2223
(Supp. 1972); N. M. Stat. Ann. 40A-5-1 to 40A-5-3 (1972); N.C. Gen. Stat.
14-45.1 (Supp. 1971); Ore. Rev. Stat. 435.405 to 435.495 (1971); S. C.
Code Ann. 16-82 to 16-89 (1962 and Supp. 1971); Va. Code Ann. 18.1-62 to
18.1-62.3 (Supp. 1972). Mr. Justice Clark described some of these States as
having "led the way." Religion, Morality, and Abortion: A Constitutional
Appraisal, 2 Loyola U. (L. A.) L. Rev. 1, 11 (1969).
By the end of 1970, four other States had repealed criminal penalties for
abortions performed in early pregnancy by a licensed physician, subject to
stated procedural and health requirements. Alaska Stat. 11.15.060 (1970);
Haw. Rev. Stat. 453-16 (Supp. 1971); N. Y. Penal Code 125.05, subd. 3
(Supp. 1972-1973); Wash. Rev. Code 9.02.060 to 9.02.080 (Supp. 1972).
The precise status of criminal abortion laws in some States is made unclear
by recent decisions in state and federal courts striking down existing state
laws, in whole or in part.
[ Footnote 38 ] "Whereas, Abortion, like any other medical procedure, should
not be performed when contrary to the best interests of the patient [410 U.S.
113, 144] since good medical practice requires due consideration for the
patient's welfare and not mere acquiescence to the patient's demand; and
"Whereas, The standards of sound clinical judgment, which, together with
informed patient consent should be determinative according to the merits of
each individual case; therefore be it
"RESOLVED, That abortion is a medical procedure and should be performed
only by a duly licensed physician and surgeon in an accredited hospital
acting only after consultation with two other physicians chosen because of
their professional competency and in conformance with standards of good
medical practice and the Medical Practice Act of his State; and be it further
"RESOLVED, That no physician or other professional personnel shall be
compelled to perform any act which violates his good medical judgment.
Neither physician, hospital, nor hospital personnel shall be required to
perform any act violative of personally-held moral principles. In these
circumstances good medical practice requires only that the physician or
other professional personnel withdraw from the case so long as the
withdrawal is consistent with good medical practice." Proceedings of the
AMA House of Delegates 220 (June 1970).
[ Footnote 39 ] "The Principles of Medical Ethics of the AMA do not prohibit a
physician from performing an abortion that is performed in accordance with
good medical practice and under circumstances that do not violate the laws
of the community in which he practices.
"In the matter of abortions, as of any other medical procedure, the Judicial
Council becomes involved whenever there is alleged violation of the
Principles of Medical Ethics as established by the House of Delegates."
[ Footnote 40 ] "UNIFORM ABORTION ACT
"SECTION 1. [Abortion Defined; When Authorized.]
"(a) `Abortion' means the termination of human pregnancy with an intention
other than to produce a live birth or to remove a dead fetus.
"(b) An abortion may be performed in this state only if it is performed:
"(1) by a physician licensed to practice medicine [or osteopathy] in this state
or by a physician practicing medicine [or osteopathy] in the employ of the
government of the United States or of this state, [and the abortion is
performed [in the physician's office or in a medical clinic, or] in a hospital
approved by the [Department of Health] or operated by the United States,
this state, or any department, agency, or political subdivision of either;] or by
a female upon herself upon the advice of the physician; and
"(2) within 20. weeks after the commencement of the pregnancy [or after 20.
weeks only if the physician has reasonable cause to believe (i) there is a
substantial risk that continuance of the pregnancy would endanger the life of
the mother or would gravely impair the physical or mental health of the
mother, (ii) that the child would be born with grave physical or mental defect,
or (iii) that [410 U.S. 113, 147] the pregnancy resulted from rape or incest,
or illicit intercourse with a girl under the age of 16 years].
"SECTION 2. [Penalty.] Any person who performs or procures an abortion
other than authorized by this Act is guilty of a [felony] and, upon conviction
thereof, may be sentenced to pay a fine not exceeding [$1,000] or to
imprisonment [in the state penitentiary] not exceeding [5 years], or both.
"SECTION 3. [Uniformity of Interpretation.] This Act shall be construed to
effectuate its general purpose to make uniform the law with respect to the
subject of this Act among those states which enact it.
"SECTION 4. [Short Title.] This Act may be cited as the Uniform Abortion Act.
"SECTION 5. [Severability.] If any provision of this Act or the application
thereof to any person or circumstance is held invalid, the invalidity does not
affect other provisions or applications of this Act which can be given effect
without the invalid provision or application, and to this end the provisions of
this Act are severable.
"SECTION 6. [Repeal.] The following acts and parts of acts are repealed:
"(1) "(2) "(3)
"SECTION 7. [Time of Taking Effect.] This Act shall take effect
________________."
[ Footnote 41 ] "This Act is based largely upon the New York abortion act
following a review of the more recent laws on abortion in several states and
upon recognition of a more liberal trend in laws on this subject. Recognition
was given also to the several decisions in state and federal courts which
show a further trend toward liberalization of abortion laws, especially during
the first trimester of pregnancy.
"Recognizing that a number of problems appeared in New York, a shorter
time period for `unlimited' abortions was advisable. The [410 U.S. 113,
148] time period was bracketed to permit the various states to insert a
figure more in keeping with the different conditions that might exist among
the states. Likewise, the language limiting the place or places in which
abortions may be performed was also bracketed to account for different
conditions among the states. In addition, limitations on abortions after the
initial `unlimited' period were placed in brackets so that individual states may
adopt all or any of these reasons, or place further restrictions upon abortions
after the initial period.
"This Act does not contain any provision relating to medical review
committees or prohibitions against sanctions imposed upon medical
personnel refusing to participate in abortions because of religious or other
similar reasons, or the like. Such provisions, while related, do not directly
pertain to when, where, or by whom abortions may be performed; however,
the Act is not drafted to exclude such a provision by a state wishing to enact
the same."
[ Footnote 42 ] See, for example, YWCA v. Kugler, 342 F. Supp. 1048, 1074
(N. J. 1972); Abele v. Markle, 342 F. Supp. 800, 805-806 (Conn. 1972)
(Newman, J., concurring in result), appeal docketed, No. 72-56; Walsingham
v. State, 250 So.2d 857, 863 (Ervin, J., concurring) (Fla. 1971); State v.
Gedicke, 43 N. J. L. 86, 90 (1881); Means II 381-382.
[ Footnote 43 ] See C. Haagensen & W. Lloyd, A Hundred Years of Medicine
19 (1943).
[ Footnote 44 ] Potts, Postconceptive Control of Fertility, 8 Int'l J. of G. & O.
957, 967 (1970) (England and Wales); Abortion Mortality, 20 Morbidity and
Mortality 208, 209 (June 12, 1971) (U.S. Dept. of HEW, Public Health
Service) (New York City); Tietze, United States: Therapeutic Abortions,
1963-1968, 59 Studies in Family Planning 5, 7 (1970); Tietze, Mortality with
Contraception and Induced Abortion, 45 Studies in Family Planning 6 (1969)
(Japan, Czechoslovakia, Hungary); Tietze & Lehfeldt, Legal Abortion in
Eastern Europe, 175 J. A. M. A. 1149, 1152 (April 1961). Other sources are
discussed in Lader 17-23.
[ Footnote 45 ] See Brief of Amicus National Right to Life Committee; R.
Drinan, The Inviolability of the Right to be Born, in Abortion and the Law 107
(D. Smith ed. 1967); Louisell, Abortion, The Practice of Medicine and the
Due Process of Law, 16 U. C. L. A. L. Rev. 233 (1969); Noonan 1.
[ Footnote 46 ] See, e. g., Abele v. Markle, 342 F. Supp. 800 (Conn. 1972),
appeal docketed, No. 72-56.
[ Footnote 47 ] See discussions in Means I and Means II.
[ Footnote 48 ] See, e. g., State v. Murphy, 27 N. J. L. 112, 114 (1858).
[ Footnote 49 ] Watson v. State, 9 Tex. App. 237, 244-245 (1880); Moore v.
State, 37 Tex. Cr. R. 552, 561, 40 S. W. 287, 290 (1897); Shaw v. State, 73
Tex. Cr. R. 337, 339, 165 S. W. 930, 931 (1914); Fondren v. State, 74 Tex.
Cr. R. 552, 557, 169 S. W. 411, 414 (1914); Gray v. State, 77 Tex. Cr. R.
221, 229, 178 S. W. 337, 341 (1915). There is no immunity in Texas for the
father who is not married to the mother. Hammett v. State, 84 Tex. Cr. R.
635, 209 S. W. 661 (1919); Thompson v. State (Ct. Crim. App. Tex. 1971),
appeal docketed, No. 71-1200.
[ Footnote 50 ] See Smith v. State, 33 Me., at 55; In re Vince, 2 N. J. 443,
450, 67 A. 2d 141, 144 (1949). A short discussion of the modern law on this
issue is contained in the Comment to the ALI's Model Penal Code 207.11, at
158 and nn. 35-37 (Tent. Draft No. 9, 1959).
[ Footnote 51 ] Tr. of Oral Rearg. 20-21.
[ Footnote 52 ] Tr. of Oral Rearg. 24.
[ Footnote 53 ] We are not aware that in the taking of any census under this
clause, a fetus has ever been counted.
[ Footnote 54 ] When Texas urges that a fetus is entitled to Fourteenth
Amendment protection as a person, it faces a dilemma. Neither in Texas nor
in any other State are all abortions prohibited. Despite broad proscription, an
exception always exists. The exception contained [410 U.S. 113, 158] in
Art. 1196, for an abortion procured or attempted by medical advice for the
purpose of saving the life of the mother, is typical. But if the fetus is a person
who is not to be deprived of life without due process of law, and if the
mother's condition is the sole determinant, does not the Texas exception
appear to be out of line with the Amendment's command?
There are other inconsistencies between Fourteenth Amendment status and
the typical abortion statute. It has already been pointed out, n. 49, supra,
that in Texas the woman is not a principal or an accomplice with respect to
an abortion upon her. If the fetus is a person, why is the woman not a
principal or an accomplice? Further, the penalty for criminal abortion
specified by Art. 1195 is significantly less than the maximum penalty for
murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a
person, may the penalties be different?
[ Footnote 55 ] Cf. the Wisconsin abortion statute, defining "unborn child" to
mean "a human being from the time of conception until it is born alive," Wis.
Stat. 940.04 (6) (1969), and the new Connecticut Statute, Pub. Act No. 1
(May 1972 special session), declaring it to be the public policy of the State
and the legislative intent "to protect and preserve human life from the
moment of conception."
[ Footnote 56 ] Edelstein 16.
[ Footnote 57 ] Lader 97-99; D. Feldman, Birth Control in Jewish Law 251-
294 (1968). For a stricter view, see I. Jakobovits, Jewish Views on Abortion,
in Abortion and the Law 124 (D. Smith ed. 1967).
[ Footnote 58 ] Amicus Brief for the American Ethical Union et al. For the
position of the National Council of Churches and of other denominations,
see Lader 99-101.
[ Footnote 59 ] L. Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed.
1971); Dorland's Illustrated Medical Dictionary 1689 (24th ed. 1965).
[ Footnote 60 ] Hellman & Pritchard, supra, n. 59, at 493.
[ Footnote 61 ] For discussions of the development of the Roman Catholic
position, see D. Callahan, Abortion: Law, Choice, and Morality 409-447
(1970); Noonan 1.
[ Footnote 62 ] See Brodie, The New Biology and the Prenatal Child, 9 J.
Family L. 391, 397 (1970); Gorney, The New Biology and the Future of Man,
15 U. C. L. A. L. Rev. 273 (1968); Note, Criminal Law - Abortion - The
"Morning-After Pill" and Other Pre-Implantation Birth-Control Methods and
the Law, 46 Ore. L. Rev. 211 (1967); G. Taylor, The Biological Time Bomb 32
(1968); A. Rosenfeld, The Second Genesis 138-139 (1969); Smith, Through
a Test Tube Darkly: Artificial Insemination and the Law, 67 Mich. L. Rev. 127
(1968): Note, Artificial Insemination and the Law, 1968 U. Ill. L. F. 203.
[ Footnote 63 ] W. Prosser, The Law of Torts 335-338 (4th ed. 1971); 2 F.
Harper & F. James, The Law of Torts 1028-1031 (1956); Note, 63 Harv. L.
Rev. 173 (1949).
[ Footnote 64 ] See cases cited in Prosser, supra, n. 63, at 336-338;
Annotation, Action for Death of Unborn Child, 15 A. L. R. 3d 992 (1967).
[ Footnote 65 ] Prosser, supra, n. 63, at 338; Note, The Law and the Unborn
Child: The Legal and Logical Inconsistencies, 46 Notre Dame Law. 349, 354-
360 (1971).
[ Footnote 66 ] Louisell, Abortion, The Practice of Medicine and the Due
Process of Law, 16 U. C. L. A. L. Rev. 233, 235-238 (1969); Note, 56 Iowa L.
Rev. 994, 999-1000 (1971); Note, The Law and the Unborn Child, 46 Notre
Dame Law. 349, 351-354 (1971).
[ Footnote 67 ] Neither in this opinion nor in Doe v. Bolton, post, p. 179, do
we discuss the father's rights, if any exist in the constitutional context, in the
abortion decision. No paternal right has been asserted in either of the cases,
and the Texas and the Georgia statutes on their face take no cognizance of
the father. We are aware that some statutes recognize the father under
certain circumstances. North Carolina, for example, N.C. Gen. Stat. 14-45.1
(Supp. 1971), requires written permission for the abortion from the husband
when the woman is a married minor, that is, when she is less than 18 years
of age, 41 N.C. A. G. 489 (1971); if the woman is an unmarried minor, written
permission from the parents is required. We need not now decide whether
provisions of this kind are constitutional.
MR. JUSTICE STEWART, concurring.
In 1963, this Court, in Ferguson v. Skrupa, 372 U.S. 726 , purported to
sound the death knell for the doctrine of substantive due process, a doctrine
under which many state laws had in the past been held to violate the
Fourteenth Amendment. As Mr. Justice Black's opinion for the Court in
Skrupa put it: "We have returned to the original constitutional proposition that
courts do not substitute their social and economic beliefs for the judgment of
legislative bodies, who are elected to pass laws." Id., at 730. 1
Barely two years later, in Griswold v. Connecticut, 381 U.S. 479 , the Court
held a Connecticut birth control law unconstitutional. In view of what had
been so recently said in Skrupa, the Court's opinion in Griswold
understandably did its best to avoid reliance on the Due Process Clause of
the Fourteenth Amendment as the ground for decision. Yet, the Connecticut
law did not violate any provision of the Bill of Rights, nor any other specific
provision of the Constitution. 2 So it was clear [410 U.S. 113, 168] to me
then, and it is equally clear to me now, that the Griswold decision can be
rationally understood only as a holding that the Connecticut statute
substantively invaded the "liberty" that is protected by the Due Process
Clause of the Fourteenth Amendment. 3 As so understood, Griswold stands
as one in a long line of pre-Skrupa cases decided under the doctrine of
substantive due process, and I now accept it as such.
"In a Constitution for a free people, there can be no doubt that the meaning
of `liberty' must be broad indeed." Board of Regents v. Roth, 408 U.S. 564,
572 . The Constitution nowhere mentions a specific right of personal choice
in matters of marriage and family life, but the "liberty" protected by the Due
Process Clause of the Fourteenth Amendment covers more than those
freedoms explicitly named in the Bill of Rights. See Schware v. Board of Bar
Examiners, 353 U.S. 232, 238 -239; Pierce v. Society of Sisters, 268 U.S.
510, 534-535; Meyer v. Nebraska, 262 U.S. 390, 399 -400. Cf. Shapiro v.
Thompson, 394 U.S. 618, 629 -630; United States v. Guest, 383 U.S. 745,
757 -758; Carrington v. Rash, 380 U.S. 89, 96 ; Aptheker v. Secretary of
State, 378 U.S. 500, 505 ; Kent v. Dulles, 357 U.S. 116, 127 ; Bolling v.
Sharpe, 347 U.S. 497, 499 -500; Truax v. Raich, 239 U.S. 33, 41 . [410 U.S.
113, 169]
As Mr. Justice Harlan once wrote: "[T]he full scope of the liberty guaranteed
by the Due Process Clause cannot be found in or limited by the precise
terms of the specific guarantees elsewhere provided in the Constitution. This
`liberty' is not a series of isolated points pricked out in terms of the taking of
property; the freedom of speech, press, and religion; the right to keep and
bear arms; the freedom from unreasonable searches and seizures; and so
on. It is a rational continuum which, broadly speaking, includes a freedom
from all substantial arbitrary impositions and purposeless restraints . . . and
which also recognizes, what a reasonable and sensitive judgment must, that
certain interests require particularly careful scrutiny of the state needs
asserted to justify their abridgment." Poe v. Ullman, 367 U.S. 497,
543 (opinion dissenting from dismissal of appeal) (citations omitted). In the
words of Mr. Justice Frankfurter, "Great concepts like . . . `liberty' . . . were
purposely left to gather meaning from experience. For they relate to the
whole domain of social and economic fact, and the statesmen who founded
this Nation knew too well that only a stagnant society remains unchanged."
National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582,
646 (dissenting opinion).
Several decisions of this Court make clear that freedom of personal choice
in matters of marriage and family life is one of the liberties protected by the
Due Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388
U.S. 1, 12 ; Griswold v. Connecticut, supra; Pierce v. Society of Sisters,
supra; Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321
U.S. 158, 166 ; Skinner v. Oklahoma, 316 U.S. 535, 541 . As recently as last
Term, in Eisenstadt v. Baird, 405 U.S. 438, 453 , we recognized "the right of
the individual, married or single, to be free from unwarranted governmental
intrusion into matters so fundamentally affecting a person [410 U.S. 113,
170] as the decision whether to bear or beget a child." That right
necessarily includes the right of a woman to decide whether or not to
terminate her pregnancy. "Certainly the interests of a woman in giving of her
physical and emotional self during pregnancy and the interests that will be
affected throughout her life by the birth and raising of a child are of a far
greater degree of significance and personal intimacy than the right to send a
child to private school protected in Pierce v. Society of Sisters, 268 U.S.
510 (1925), or the right to teach a foreign language protected in Meyer v.
Nebraska, 262 U.S. 390 (1923)." Abele v. Markle, 351 F. Supp. 224, 227
(Conn. 1972).
Clearly, therefore, the Court today is correct in holding that the right asserted
by Jane Roe is embraced within the personal liberty protected by the Due
Process Clause of the Fourteenth Amendment.
It is evident that the Texas abortion statute infringes that right directly.
Indeed, it is difficult to imagine a more complete abridgment of a
constitutional freedom than that worked by the inflexible criminal statute now
in force in Texas. The question then becomes whether the state interests
advanced to justify this abridgment can survive the "particularly careful
scrutiny" that the Fourteenth Amendment here requires.
The asserted state interests are protection of the health and safety of the
pregnant woman, and protection of the potential future human life within her.
These are legitimate objectives, amply sufficient to permit a State to regulate
abortions as it does other surgical procedures, and perhaps sufficient to
permit a State to regulate abortions more stringently or even to prohibit them
in the late stages of pregnancy. But such legislation is not before us, and I
think the Court today has thoroughly demonstrated that these state interests
cannot constitutionally support the broad abridgment of personal [410 U.S.
113, 171] liberty worked by the existing Texas law. Accordingly, I join the
Court's opinion holding that that law is invalid under the Due Process Clause
of the Fourteenth Amendment.
[ Footnote 1 ] Only Mr. Justice Harlan failed to join the Court's opinion, 372
U.S., at 733 .
[ Footnote 2 ] There is no constitutional right of privacy, as such. "[The
Fourth] Amendment protects individual privacy against certain kinds of
governmental intrusion, but its protections go further, and often have nothing
to do with privacy at all. Other provisions of [410 U.S. 113, 168] the
Constitution protect personal privacy from other forms of governmental
invasion. But the protection of a person's general right to privacy - his right to
be let alone by other people - is, like the protection of his property and of his
very life, left largely to the law of the individual States." Katz v. United
States, 389 U.S. 347, 350 -351 (footnotes omitted).
[ Footnote 3 ] This was also clear to Mr. Justice Black, 381 U.S., at
507 (dissenting opinion); to Mr. Justice Harlan, 381 U.S., at 499 (opinion
concurring in the judgment); and to MR. JUSTICE WHITE, 381 U.S., at
502 (opinion concurring in the judgment). See also Mr. Justice Harlan's
thorough and thoughtful opinion dissenting from dismissal of the appeal in
Poe v. Ullman, 367 U.S. 497, 522 .
MR. JUSTICE REHNQUIST, dissenting.
The Court's opinion brings to the decision of this troubling question both
extensive historical fact and a wealth of legal scholarship. While the opinion
thus commands my respect, I find myself nonetheless in fundamental
disagreement with those parts of it that invalidate the Texas statute in
question, and therefore dissent.
I
The Court's opinion decides that a State may impose virtually no restriction
on the performance of abortions during the first trimester of pregnancy. Our
previous decisions indicate that a necessary predicate for such an opinion is
a plaintiff who was in her first trimester of pregnancy at some time during the
pendency of her law-suit. While a party may vindicate his own constitutional
rights, he may not seek vindication for the rights of others. Moose Lodge v.
Irvis, 407 U.S. 163 (1972); Sierra Club v. Morton, 405 U.S. 727 (1972). The
Court's statement of facts in this case makes clear, however, that the record
in no way indicates the presence of such a plaintiff. We know only that
plaintiff Roe at the time of filing her complaint was a pregnant woman; for
aught that appears in this record, she may have been in her last trimester of
pregnancy as of the date the complaint was filed.
Nothing in the Court's opinion indicates that Texas might not constitutionally
apply its proscription of abortion as written to a woman in that stage of
pregnancy. Nonetheless, the Court uses her complaint against the Texas
statute as a fulcrum for deciding that States may [410 U.S. 113,
172] impose virtually no restrictions on medical abortions performed during
the first trimester of pregnancy. In deciding such a hypothetical lawsuit, the
Court departs from the longstanding admonition that it should never
"formulate a rule of constitutional law broader than is required by the precise
facts to which it is to be applied." Liverpool, New York & Philadelphia S. S.
Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885). See also
Ashwander v. TVA, 297 U.S. 288, 345 (1936) (Brandeis, J., concurring).
II
Even if there were a plaintiff in this case capable of litigating the issue which
the Court decides, I would reach a conclusion opposite to that reached by
the Court. I have difficulty in concluding, as the Court does, that the right of
"privacy" is involved in this case. Texas, by the statute here challenged, bars
the performance of a medical abortion by a licensed physician on a plaintiff
such as Roe. A transaction resulting in an operation such as this is not
"private" in the ordinary usage of that word. Nor is the "privacy" that the
Court finds here even a distant relative of the freedom from searches and
seizures protected by the Fourth Amendment to the Constitution, which the
Court has referred to as embodying a right to privacy. Katz v. United
States, 389 U.S. 347 (1967).
If the Court means by the term "privacy" no more than that the claim of a
person to be free from unwanted state regulation of consensual transactions
may be a form of "liberty" protected by the Fourteenth Amendment, there is
no doubt that similar claims have been upheld in our earlier decisions on the
basis of that liberty. I agree with the statement of MR. JUSTICE STEWART
in his concurring opinion that the "liberty," against deprivation of which
without due process the Fourteenth [410 U.S. 113, 173] Amendment
protects, embraces more than the rights found in the Bill of Rights. But that
liberty is not guaranteed absolutely against deprivation, only against
deprivation without due process of law. The test traditionally applied in the
area of social and economic legislation is whether or not a law such as that
challenged has a rational relation to a valid state objective. Williamson v. Lee
Optical Co., 348 U.S. 483, 491 (1955). The Due Process Clause of the
Fourteenth Amendment undoubtedly does place a limit, albeit a broad one,
on legislative power to enact laws such as this. If the Texas statute were to
prohibit an abortion even where the mother's life is in jeopardy, I have little
doubt that such a statute would lack a rational relation to a valid state
objective under the test stated in Williamson, supra. But the Court's
sweeping invalidation of any restrictions on abortion during the first trimester
is impossible to justify under that standard, and the conscious weighing of
competing factors that the Court's opinion apparently substitutes for the
established test is far more appropriate to a legislative judgment than to a
judicial one.
The Court eschews the history of the Fourteenth Amendment in its reliance
on the "compelling state interest" test. See Weber v. Aetna Casualty &
Surety Co., 406 U.S. 164, 179 (1972) (dissenting opinion). But the Court
adds a new wrinkle to this test by transposing it from the legal considerations
associated with the Equal Protection Clause of the Fourteenth Amendment
to this case arising under the Due Process Clause of the Fourteenth
Amendment. Unless I misapprehend the consequences of this transplanting
of the "compelling state interest test," the Court's opinion will accomplish the
seemingly impossible feat of leaving this area of the law more confused than
it found it. [410 U.S. 113, 174]
While the Court's opinion quotes from the dissent of Mr. Justice Holmes in
Lochner v. New York, 198 U.S. 45, 74 (1905), the result it reaches is more
closely attuned to the majority opinion of Mr. Justice Peckham in that case.
As in Lochner and similar cases applying substantive due process standards
to economic and social welfare legislation, the adoption of the compelling
state interest standard will inevitably require this Court to examine the
legislative policies and pass on the wisdom of these policies in the very
process of deciding whether a particular state interest put forward may or
may not be "compelling." The decision here to break pregnancy into three
distinct terms and to outline the permissible restrictions the State may
impose in each one, for example, partakes more of judicial legislation than it
does of a determination of the intent of the drafters of the Fourteenth
Amendment.
The fact that a majority of the States reflecting, after all, the majority
sentiment in those States, have had restrictions on abortions for at least a
century is a strong indication, it seems to me, that the asserted right to an
abortion is not "so rooted in the traditions and conscience of our people as to
be ranked as fundamental," Snyder v. Massachusetts, 291 U.S. 97,
105 (1934). Even today, when society's views on abortion are changing, the
very existence of the debate is evidence that the "right" to an abortion is not
so universally accepted as the appellant would have us believe.
To reach its result, the Court necessarily has had to find within the scope of
the Fourteenth Amendment a right that was apparently completely unknown
to the drafters of the Amendment. As early as 1821, the first state law
dealing directly with abortion was enacted by the Connecticut Legislature.
Conn. Stat., Tit. 22, 14, 16. By the time of the adoption of the
Fourteenth [410 U.S. 113, 175] Amendment in 1868, there were at least 36
laws enacted by state or territorial legislatures limiting abortion. 1 While
many States have amended or updated [410 U.S. 113, 176] their laws, 21
of the laws on the books in 1868 remain in effect today. 2 Indeed, the Texas
statute struck down today was, as the majority notes, first enacted in
1857 [410 U.S. 113, 177] and "has remained substantially unchanged to
the present time." Ante, at 119.
There apparently was no question concerning the validity of this provision or
of any of the other state statutes when the Fourteenth Amendment was
adopted. The only conclusion possible from this history is that the drafters
did not intend to have the Fourteenth Amendment withdraw from the States
the power to legislate with respect to this matter.
III
Even if one were to agree that the case that the Court decides were here,
and that the enunciation of the substantive constitutional law in the Court's
opinion were proper, the actual disposition of the case by the Court is still
difficult to justify. The Texas statute is struck down in toto, even though the
Court apparently concedes that at later periods of pregnancy Texas might
impose these selfsame statutory limitations on abortion. My understanding of
past practice is that a statute found [410 U.S. 113, 178] to be invalid as
applied to a particular plaintiff, but not unconstitutional as a whole, is not
simply "struck down" but is, instead, declared unconstitutional as applied to
the fact situation before the Court. Yick Wo v. Hopkins, 118 U.S. 356 (1886);
Street v. New York, 394 U.S. 576 (1969).
For all of the foregoing reasons, I respectfully dissent.
- See more at: http://caselaw.findlaw.com/us-supreme-
court/410/113.html#sthash.UVEeLwi5.dpuf

UNITED STATES, Petitioner
v.
Edith Schlain WINDSOR, in her capacity as executor of the Estate of Thea
Clara Spyer, et al.
No. 12-307.
Supreme Court of United States.
Argued March 27, 2013.
Decided June 26, 2013.
2682*2682 Vicki C. Jackson, appointed by this Court, as amicus curiae, by
Sri Srinivasan, for Petitioner.
Paul D. Clement, for Respondent Bipartisan Legal Advisory Group of the
United States House of Representatives.
Donald B. Verrilli, Jr., Solicitor General, Washington, D.C, for United States
on the Jurisdictional Questions.
Roberta A. Kaplan, for Respondent Edith Schlain Windsor.
Pamela S. Karlan, Jeffrey L. Fisher, Stanford, CA, James D. Esseks, Joshua
A. Block, Leslie Cooper, Steven R. Shapiro, New York, NY, Roberta A.
Kaplan, Walter Rieman, Jaren Janghorbani, Colin S. Kelly, Paul, Weiss,
Rifkind, Wharton & Garrison LLP, New York, NY, Arthur Eisenberg, Mariko
Hirose, New York, NY, for Respondent Edith Schlain Windsor.
Kerry W. Kircher, General Counsel, William Pittard, Deputy General
Counsel, Christine Davenport, Senior Assistant Counsel, Todd B. Tatelman,
Mary Beth Walker, Eleni M. Roumel, Assistant Counsels Office of General
Counsel, Washington, D.C, Paul D. Clement, H. Christopher Bartolomucci,
Nicholas J. Nelson, Michael H. McGinley, Bancroft PLLC, Washington, D.C,
for Respondent The Bipartisan Legal Advisory Group of the United States
House of Representatives.
Donald B. Verrilli, Jr., Solicitor General, Stuart F. Delery, Principal Deputy
Assistant Attorney General, Sri Srinivasan, Deputy Solicitor General, Eric J.
Feigin, Assistant to the Solicitor General, Michael Jay Singer, August E.
Flentje, Helen L. Gilbert, Adam C. Jed, Washington, D.C, for the United
States on the Jurisdictional Questions.
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 Marriage Act, which excludes a same-sex partner from the
definition of "spouse" as that term is used in federal statutes. 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 Haw. 530, 852 P.2d 44
(1993), and before any State had acted to permit it, Congress enacted the
Defense of Marriage Act (DOMA), 110 Stat. 2419. DOMA contains two
operative sections: Section 2, which has not been challenged here, allows
States to refuse to recognize same-sex 2683*2683marriages 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 federal definition of "marriage" and
"spouse." Section 3 of DOMA provides as follows:
"In determining the meaning of any Act of Congress, 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 husband 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. Concerned
about Spyer's health, the couple made the 2007 trip to Canada for their
marriage, but they continued to reside 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 (C.A.2 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
denied 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 Department has previously
defended DOMA against ... challenges 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, classifications based on sexual
orientation should be subject to a heightened standard of scrutiny." Id., at
191. The Department of Justice has submitted many 530D letters over the
years refusing to defend laws it deems unconstitutional, 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, because the
530D letter was not preceded by an adverse 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
protection 2684*2684 scrutiny should apply to laws that classify on the basis
of sexual orientation.
Although "the President ... instructed the Department not to defend the
statute inWindsor," he also decided "that Section 3 will continue to be
enforced by the Executive Branch" and that the United States had an
"interest in providing Congress a full and fair opportunity to participate in the
litigation of those cases." Id., at 191-193. The stated rationale for this dual-
track procedure (determination of unconstitutionality coupled with ongoing
enforcement) 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
Department 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 urged. The United States has not
complied with the judgment. Windsor has not received her refund, and the
Executive Branch continues to enforce 3 of DOMA.
In granting certiorari on the question of the constitutionality 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. ___, 133 S.Ct. 786, 184 L.Ed.2d 527 (2012). She has ably discharged
her duties.
In an unrelated case, the United States Court of Appeals 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 certiorari and appear as parties here.
There is no dispute that when this case was in the District Court it presented
a concrete disagreement between 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. Freedom From Religion Foundation, Inc., 551 U.S. 587,
599, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007)
(plurality 2685*2685 opinion) (emphasis deleted). Windsor suffered a
redressable injury when she was required to pay estate taxes from which, in
her view, she was exempt but for the alleged invalidity of 3 of DOMA.
The decision of the Executive not to defend the constitutionality 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
announced 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
(failure 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 justiciable controversy between the parties, despite what the claimant
would find to be an inconsistency in that stance. Windsor, the Government,
BLAG, and theamicus 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. Accordingly,
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. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d
343 (1975). The latter are "essentially matters of judicial self-
governance." Id., at 500, 95 S.Ct. 2197. The Court has kept these two
strands separate: "Article III standing, which enforces the Constitution's
case-orcontroversy requirement, see Lujan v. Defenders of Wildlife,504 U.S.
555, 559-562, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); and prudential
standing, which embodies `judicially self-imposed limits on the exercise of
federal jurisdiction,' Allen [v. Wright,] 468 U.S. [737,] 751, 104 S.Ct. 3315 [82
L.Ed.2d 556 (1984)]." Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1,
11-12, 124 S.Ct. 2301, 159 L.Ed.2d 98 (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 independent action of some third
party not before the court.' Third, it must be `likely,' as opposed to merely
`speculative,' that the injury will be `redressed by a favorable
decision.'" Lujan, supra, at 2686*2686 560-561, 112 S.Ct. 2130 (footnote
and citations omitted).
Rules of prudential standing, by contrast, are more flexible "rule[s] ... of
federal appellate practice," Deposit Guaranty Nat. Bank v. Roper, 445 U.S.
326, 333, 100 S.Ct. 1166, 63 L.Ed.2d 427 (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 address
the questions and even though judicial intervention may be unnecessary to
protect individual rights." Warth, supra, at 500, 95 S.Ct. 2197.
In this case the United States retains a stake sufficient to support Article III
jurisdiction on appeal and in proceedings 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, 127 S.Ct. 2553, indeed as real and
immediate as an order directing an individual to pay a tax. That the
Executive may welcome 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 Executive disagrees with 3 of DOMA,
which results in Windsor's liability for the tax. Windsor's ongoing claim for
funds that the United States refuses to pay thus establishes 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,
103 S.Ct. 2764, 77 L.Ed.2d 317 (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, 103 S.Ct. 2764. 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 deportation of
Chadha." Ibid. This Court held "that the INS was sufficiently aggrieved by the
Court of Appeals decision 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 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 statute], the INS will
execute its order and deport him.'" Id., at 939-940, 103 S.Ct.
2764 (quoting Chadha v. INS, 634 F.2d 408, 419 (C.A.9 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
adverseness." 462 U.S., at 939, 103 S.Ct. 2764. The holdings of cases are
instructive, and the words of Chadha make clear its holding that the refusal
of the Executive to provide the relief sought suffices to preserve a justiciable
dispute as required by Article III. In short, even where "the Government
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 2687*2687 intended to enforce the challenged law
against that party." Id., at 940, n. 12, 103 S.Ct. 2764.
It is true that "[a] party who receives all that he has sought generally is not
aggrieved by the judgment affording the relief and cannot appeal from
it." Roper, supra, at 333,100 S.Ct. 1166, see also Camreta v. Greene, 563
U.S. ___, ___, 131 S.Ct. 2020, 2030, 179 L.Ed.2d 1118 (2011) ("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 requirements of Art. III." Roper, supra, at
333-334, 100 S.Ct. 1166.
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 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, 56 S.Ct. 466, 80
L.Ed. 688 (1936) (Brandeis, J., concurring) (quoting Chicago & Grand Trunk
R. Co. v. Wellman, 143 U.S. 339, 345, 12 S.Ct. 400, 36 L.Ed. 176 (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 constitutional
questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663
(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 underlying the usual reluctance to exert judicial
power." Warth, 422 U.S., at 500-501, 95 S.Ct. 2197. 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, theChadha 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, 103 S.Ct. 2764. Chadha was not an
anomaly in this respect. The Court adopts the practice of entertaining
arguments made by an amicus when the Solicitor General confesses error
with respect to a judgment 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, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).
In the case now before the Court the attorneys for BLAG present a
substantial argument for the constitutionality of 3 of 2688*2688 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 (C.A.1 2012). Rights and privileges of hundreds
of thousands 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 circumstances, the very term "prudential" counsels that it
is a proper exercise of the Court's responsibility to take jurisdiction. 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
standing to challenge the District Court's ruling and its affirmance 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
propriety 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 Executive's agreement with a plaintiff that a law is
unconstitutional is enough to preclude judicial review, then the Supreme
Court's primary role in determining the constitutionality of a law that has
inflicted real injury on a plaintiff 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 conflict with the Constitution, `[i]t is emphatically the
province and duty of the judicial department to say what the law
is.'" Zivotofsky v. Clinton, 566 U.S. ___, ___, 132 S.Ct. 1421, 1427-1428,
182 L.Ed.2d 423 (2012) (quoting Marbury v. Madison, 1 Cranch 137, 177, 2
L.Ed. 60 (1803)). Similarly, with respect to the legislative power, when
Congress has passed a statute and a President has signed it, it poses grave
challenges to the separation 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.
2689*2689 The Court's jurisdictional holding, it must be underscored, 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 appropriate 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 constitutional 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 Government and to hundreds of thousands of persons. These
circumstances support the Court's decision to proceed to the merits.
III
When at first Windsor and Spyer longed to marry, neither 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 considered 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 challenged. For
others, however, came the beginnings of a new perspective, a new insight.
Accordingly some States 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 commitment 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 recognized 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
writing, 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
representatives 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 2690*2690been treated as being within the authority and
realm of the separate States. Yet it is further established that Congress, in
enacting discrete statutes, can make determinations that bear on marital
rights and privileges. Just this Term the Court upheld the authority of the
Congress to preempt 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. ___, 133 S.Ct.
1943, ___ L.Ed.2d ___ (2013); see also Ridgway v. Ridgway, 454 U.S. 46,
102 S.Ct. 49, 70 L.Ed.2d 39 (1981); Wissner v. Wissner, 338 U.S. 655, 70
S.Ct. 398, 94 L.Ed. 424 (1950). This is one example of the general principle
that when the Federal Government acts in the exercise of its own proper
authority, it has a wide choice of the mechanisms and means to adopt.
See McCulloch v. Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579 (1819).
Congress has the power both to ensure efficiency in the administration of its
programs 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 determined
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 constitutionality 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
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 Amendment 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://www.maine.gov/sos/cec/elec/2012/tab-ref-
2012.html (all Internet sources as visited June 18, 2013, and available 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 Existing
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.
2691*2691 In order to assess the validity of that intervention it is necessary
to discuss the extent of the state power and authority over marriage as a
matter of history and tradition. 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, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); but, subject
to those guarantees, "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, 95 S.Ct. 553, 42 L.Ed.2d 532 (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, 63 S.Ct. 207, 87 L.Ed. 279 (1942) ("Each state as a
sovereign has a rightful and legitimate concern in the marital status of
persons domiciled 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 enforcement 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 marriage
and divorce." Haddock v. Haddock, 201 U.S. 562, 575, 26 S.Ct. 525, 50
L.Ed. 867 (1906); see also In re Burrus, 136 U.S. 586, 593-594, 10 S.Ct.
850, 34 L.Ed. 500 (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 statelaw policy decisions with respect to
domestic relations. In De Sylva v. Ballentine, 351 U.S. 570, 76 S.Ct. 974,
100 L.Ed. 1415 (1956), for example, the Court held that, "[t]o decide who is
the widow or widower 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 relationships" because "there is no federal law of
domestic relations." Id., at 580, 76 S.Ct. 974. 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. Richards, 504 U.S. 689, 703, 112 S.Ct.
2206, 119 L.Ed.2d 468 (1992). Federal courts will not hear divorce and
custody cases even if they arise in diversity because of "the virtually
exclusive primacy... of the States in the regulation of domestic
relations." Id., at 714, 112 S.Ct. 2206 (Blackmun, J., concurring in judgment).
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, 50 S.Ct. 154,
74 L.Ed. 489 (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 2692*2692 (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 obligations of marriage are uniform for all married
couples within each State, though they may vary, subject to constitutional
guarantees, from one State to the next. Despite 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 its reach and extent,
departs from this history and tradition of reliance on state law to define
marriage. "`[D]iscriminations of an unusual character especially suggest
careful consideration to determine whether they are obnoxious to the
constitutional provision.'" Romer v. Evans, 517 U.S. 620, 633, 116 S.Ct.
1620, 134 L.Ed.2d 855 (1996) (quoting Louisville Gas & Elec. Co. v.
Coleman, 277 U.S. 32, 37-38, 48 S.Ct. 423, 72 L.Ed. 770 (1928)).
The Federal Government uses this state-defined class for the opposite
purpose to impose restrictions and disabilities. 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. ___, ___, 131
S.Ct. 2355, 2359, 180 L.Ed.2d 269 (2011). These actions were without doubt
a proper exercise of its sovereign authority within our federal system, all in
the way that the Framers of the Constitution 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 interaction 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,
123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). By its recognition of the validity of
same-sex 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
married, the State acted to give their lawful conduct a lawful status. This
status is a far-reaching legal acknowledgment 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 2693*2693 roots of the
institution of marriage and its evolving understanding 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 Government. See U.S. Const., Amdt. 5; Bolling v. Sharpe, 347 U.S.
497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). The Constitution's guarantee of
equality "must at the very least mean that a bare congressional desire to
harm a politically unpopular group cannot" justify disparate treatment of that
group. Department of Agriculture v. Moreno, 413 U.S. 528, 534-535, 93 S.Ct.
2821, 37 L.Ed.2d 782 (1973). In determining whether a law is motived by an
improper animus or purpose, "`[d]iscriminations of an unusual character'"
especially require careful consideration.Supra, at 2692 (quoting Romer,
supra, at 633, 116 S.Ct. 1620). 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 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 marriage.... H.R. 3396 is appropriately entitled the `Defense of
Marriage Act.' The effort to redefine `marriage' to extend 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 heterosexuality 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 state's decision as to how to shape its own marriage
laws." Massachusetts, 682 F.3d, at 12-13. The Act's demonstrated purpose
is to ensure that if any State decides to recognize same-sex marriages,
those unions will be treated as second-class marriages 2694*2694 for
purposes of federal law. This raises a most serious question under the
Constitution's Fifth Amendment.
DOMA's operation in practice confirms this purpose. When New York
adopted a law to permit same-sex marriage, it sought to eliminate inequality;
but DOMA frustrates that objective through a system-wide enactment with no
identified connection to any particular area of federal 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 determination 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, criminal sanctions,
copyright, and veterans' benefits.
DOMA's principal effect is to identify a subset of state-sanctioned marriages
and make them unequal. The principal 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 contradictory
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 undermines both the public and private significance of state-
sanctioned same-sex marriages; for it tells those couples, 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, 123 S.Ct.
2472, 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
protections 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 Cemetery 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 2695*2695 official,
115(a)(1). Although a "spouse" qualifies as a member of the officer's
"immediate family," 115(c)(2), DOMA makes this protection inapplicable 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 reduces 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 Security 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
expected that spouses will support each other as they pursue educational
opportunities, federal law takes into consideration a spouse's income in
calculating a student's federal financial aid eligibility. See 20 U.S.C.
1087nn(b). Same-sex married couples are exempt from this requirement.
The same is true with respect to federal ethics rules. Federal executive and
agency officials are prohibited 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 accepting high-value gifts from certain
sources, see 2 U.S.C. 31-2(a)(1), and another mandates detailed financial
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.
***
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 unconstitutional as a deprivation
of the liberty of the person protected 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. SeeBolling, 347 U.S., at 499-500, 74 S.Ct.
663; Adarand Constructors, Inc. v. Pen, 515 U.S. 200, 217-218, 115 S.Ct.
2097, 132 L.Ed.2d 158 (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 Amendment 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 2696*2696 disability on the class by refusing to acknowledge a status the
State finds to be dignified and proper. DOMA instructs 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 marriages 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
marriage 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.
Chief Justice ROBERTS, dissenting.
I agree with Justice SCALIA that this Court lacks jurisdiction 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 amply 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 2707-2708
(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 something 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 2689. 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 2694, of the 342
Representatives and 85 Senators who voted for it, and the President who
signed it, was a bare desire to harm. Nor do the snippets of legislative
history and the banal title of the Act to which the majority points suffice to
make such a showing. 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 majority'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 2692,
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 2696 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 understanding of the meaning of
equality." Ante, at 2681. Justice SCALIA believes this is a "`bald, unreasoned
disclaime[r].'" 2697*2697 Post, at 2709. 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 2690, 2692. I think the majority goes off
course, as I have said, but it is undeniable that its judgment is based on
federalism.
The majority extensively chronicles DOMA's departure from the normal
allocation of responsibility between State and Federal Governments,
emphasizing that DOMA "rejects the long-established precept that the
incidents, benefits, and obligations of marriage are uniform for all married
couples within each State." Ante, at 2692. But there is no such departure
when one State adopts or keeps a definition 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 2692.
It is not just this central feature of the majority's analysis 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 2693; those statute-specific considerations will, of course, be
irrelevant in future cases about different statutes. The majority emphasizes
that DOMA was a "systemwide 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 authority to regulate the subject of
domestic relations with respect to the `[p]rotection of offspring, property
interests, and the enforcement of marital responsibilities.'" Ante, at 2694,
2690. And the federal decision undermined (in the majority's view) the
"dignity [already] conferred by the States in the exercise of their sovereign
power," ante, at 2693, whereas a State's decision whether to expand the
definition of marriage from its traditional contours involves no similar
concern.
We may in the future have to resolve challenges to state 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
particular context ofHollingsworth v. Perry, ___ U.S., at ___, 133 S.Ct. 1521.
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.
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 2698*2698power under the
Constitution to invalidate this democratically adopted legislation. 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 "Cases" and "Controversies." Yet the plaintiff
and the Government 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
wedoing 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 2688. 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 department to say what the
law is."Ibid. (internal quotation marks and brackets omitted).
That is jaw-dropping. It is an assertion of judicial supremacy over the
people's Representatives in Congress and the Executive. It envisions a
Supreme Court standing (or rather enthroned) at the apex of government,
empowered to decide all constitutional questions, always and everywhere
"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
coordinate by the terms of their common commission," none of which
branches could "pretend to an exclusive or superior right of settling the
boundaries between their respective powers." The Federalist, No. 49, p. 314
(C. Rossiter ed. 1961) (J. Madison). The people did this to protect
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 confidently 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 2688. 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 majority believes, the power "`to say what
the law is,'" ibid., giving the Supreme Court the "primary role in determining
the constitutionality of laws." The 2699*2699 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 government claims (civil or criminal) against private persons,
and disputed claims by private persons against the government 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 onlywith regard to
the facts) but with regard to the applicable law in which event (andonly in
which event) it becomes the "`province and duty of the judicial department to
say what the law is.'" Ante, at 2688.
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-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
declined 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 Correspondence 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, 94 S.Ct. 2925, 41
L.Ed.2d 706 (1974); United States v. Richardson, 418 U.S. 166, 179, 94
S.Ct. 2940, 41 L.Ed.2d 678 (1974). As Justice Brandeis put it, we cannot
"pass upon the constitutionality of legislation in a friendly, non-adversary,
proceeding"; absent a "`real, earnest and vital controversy between
individuals,'" we have neither any work to do nor any power to do
it.Ashwander v. TVA, 297 U.S. 288, 346, 56 S.Ct. 466, 80 L.Ed. 688 (1936)
(concurring opinion) (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143
U.S. 339, 345, 12 S.Ct. 400, 36 L.Ed. 176 (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,
112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
That is completely absent here. Windsor's injury was cured by the judgment
in her favor. And while, in ordinary 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
judgment 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 could spend many fruitless afternoons ransacking
our library for any other petitioner's brief seeking an affirmance of the
judgment against it.[1] 2700*2700 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
judgment 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 District 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 elevate 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 conceded 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 inINS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317
(1983). But in that case, two parties to the litigation disagreed with the
position of the United States and with the court below: the House and
Senate, which had intervened in the case. Because Chadha concerned the
validity of a mode of congressional action the one-house legislative veto
the House and Senate were threatened with destruction of what they
claimed to be one of their institutional 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, 103 S.Ct.
2764. But in a footnote to that statement, the Court acknowledged Article III's
separate requirement of a "justiciable case or controversy," and stated
that this requirement was satisfied "because of the presence of the two
Houses of Congress as adverse parties." Id., at 931, n. 6, 103 S.Ct. 2764.
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 congressional participation. Id., at 939, 103 S.Ct. 2764.
That remark is true, as a description of the judicial review conducted in the
Court of Appeals, where the Houses of Congress 2701*2701 had not
intervened. (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 passage of our opinion seems to be addressing that initial standing in
the Court of Appeals, as indicated by its quotation from the lower court's
opinion,462 U.S., at 939-940, 103 S.Ct. 2764. But if it was addressing
standing to pursue the appeal, the remark was both the purest dictum (as
congressional intervention at that point made the required adverseness
"beyond doubt," id., at 939, 103 S.Ct. 2764), and quite incorrect. When a
private party has a judicial decree safely in hand to prevent his injury,
additional judicial action requires that a party injured by the decreeseek 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 2685. It then proceeds to call the requirement of
adverseness a "prudential" aspect of standing. Of standing. That is
incomprehensible. A plaintiff (or appellant) can have all the standing in the
world satisfying all three standing requirements of Lujan that the majority
so carefully quotes, ante, at 2686 and yet no Article III controversy may
be before the court. Article III requires not just a plaintiff (or appellant) who
has standing to complain butan opposing party who denies the validity of the
complaint. 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"
element) of standing. The question here is not whether, as the majority puts
it, "the United States retains a stake sufficient to support Article III
jurisdiction," ibid. the question is whether there is any controversy (which
requirescontradiction) between the United States and Ms. Windsor. There is
not.
I find it wryly amusing that the majority seeks to dismiss the requirement of
party-adverseness as nothing more than a "prudential" aspect of the sole
Article III requirement of standing. (Relegating a jurisdictional requirement 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 oppositedistortion of the
principles limiting our jurisdiction. The Court's notorious opinion inFlast v.
Cohen, 392 U.S. 83, 98-101, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), held
thatstanding 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, 127 S.Ct. 2553, 168 L.Ed.2d 424 (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, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), the District
Court had entered judgment in the individual plaintiff's favor based on
the 2702*2702 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, 563 U.S. ___, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (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" requirement 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 2687, effects a breathtaking revolution in our Article III
jurisprudence.
It may be argued that if what we say is true some Presidential
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 enforcing
an unconstitutional law, suit will of course lie; but if, in that suit, the Executive
admits the unconstitutionality 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 nor
to defend the statute he believed to be unconstitutional, see Presidential
Authority to Decline to Execute Unconstitutional 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 determination 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 impeachment) of compelling the President to enforce the laws it
has written. Or the President could have evaded presentation of the
constitutional issue to this Court simply by declining to appeal the District
Court and Court of Appeals dispositions he agreed with. Be sure of this
much: If a President wants to insulate his judgment of unconstitutionality
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, 2 L.Ed. 60 (1803) that "[i]t is emphatically the province and
duty of the judicial department to say what the law is." Ante, at 2688 (internal
quotation 2703*2703marks 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 responsibility 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 (emphasis 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 precisely addressing the question before us here, the
majority ought instead to have consulted the opinion of Chief Justice Taney
in Lord v. Veazie,8 How. 251, 12 L.Ed. 1067 (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 affected if the question of
law was decided in the manner 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 proceeding was in contempt of the court, and
highly reprehensible.... 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] expound 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, 2 L.Ed. 60.
B
A few words in response to the theory of jurisdiction set forth in Justice
ALITO's dissent: Though less far reaching 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 constitutional 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 history, the President's failure to
"take Care that the Laws be faithfully executed," U.S. Const., Art. II, 3,
could only be 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 vindicate 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 2704*2704 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 parties," 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 & 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 implements a law in a manner that is not to Congress's
liking.
Justice ALITO's notion of standing will likewise enormously shrink the area to
which "judicial censure, exercised 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 implementation of welfare programs
is too generous a failure that no other litigant would have standing to
complain about. Moreover, as we indicated inRaines v. Byrd, 521 U.S. 811,
828, 117 S.Ct. 2312, 138 L.Ed.2d 849 (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 "injures" 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 hitherto 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] 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 (C.A.D.C.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 recourse 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 2705*2705 Houses of
Congress care enough about the matter, they have available innumerable
ways to compel 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 faithfully 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 volunteered its view of the
merits, however, I proceed to discuss that as well.
A those three cases are the only authorities that the Court cites in Part IV
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 decide whether this federal intrusion on state power is a
violation 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" because "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 2681. But no one questions 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 accepting state definitions of marriage" continue. See, e.g.,
ante, at 2681. 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 statutes 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 laws excluding same-
sex marriage is confined to the Federal 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 protection guarantee of the Fourteenth Amendment
makes [the] Fifth 2706*2706Amendment [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 2695.
The only possible interpretation 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 Bolling v. Sharpe,347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884
(1954), Department of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821,
37 L.Ed.2d 782 (1973), and Romer v. Evans,517 U.S. 620, 116 S.Ct. 1620,
134 L.Ed.2d 855 (1996) all of which are equal-protection cases.[5] And
about the Constitution's meaning, except for its citation of Lawrence v.
Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (not an equal-
protection case) to support its passing assertion that the Constitution
protects the "moral and sexual choices" of same-sex couples, ante, at 2694.
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 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 rationality. 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 (C.A.2 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, 116 S.Ct.
2264, 135 L.Ed.2d 735 (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 applyanything that resembles that deferential
framework. See Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125
L.Ed.2d 257 (1993) (a classification "`must be upheld ... if there is any
reasonably 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 unconstitutional as "a deprivation of the liberty of the person
protected by the Fifth Amendment of the Constitution," ante, at 2695; that it
violates "basic due process" principles, ante, at 2693; and that it inflicts an
"injury and indignity" of a kind that denies "an essential part of the liberty
protected by the Fifth Amendment," ante, at 2692. 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 2707*2707 does not argue that same-sex marriage is
"deeply rooted in this Nation's history and tradition," Washington v.
Glucksberg, 521 U.S. 702, 720-721, 117 S.Ct. 2258, 138 L.Ed.2d 772
(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, 117 S.Ct. 2258 (quoting Palko v. Connecticut,302 U.S. 319, 325, 58
S.Ct. 149, 82 L.Ed. 288 (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-dueprocess grounds, and
perhaps with some amorphous federalism component playing a role)
because it is motivated by a "`bare ... desire to harm'" couples in same-sex
marriages. Ante, at 2693. 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, 123 S.Ct. 2472, 156 L.Ed.2d 508 (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 neither requires nor forbids us
to approve of no-fault divorce, polygamy, or the consumption of alcohol.
However, even setting aside traditional moral disapproval of same-sex
marriage (or indeed same-sex sex), there are many perfectly valid
indeed, downright boring justifying rationales for this legislation. Their
existence 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 legislators'
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, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Or at least it was a familiar
principle. 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 2693. 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, 107 S.Ct. 2573, 96 L.Ed.2d
510 (1987)), but our respected coordinate branches, the Congress and
Presidency of the United States. Laying such a charge against them should
require the most extraordinary evidence, and I would have thought that
every attempt would be made to indulge a more anodyne explanation for the
statute. The majority does the opposite affirmatively concealing from the
reader the arguments that exist in justification. It makes only a passing
mention of the "arguments put forward" by the Act's defenders, and does not
even trouble to paraphrase or describe them. See ante, at 2693. I imagine
that this is because it is harder to maintain the illusion 2708*2708 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 Federal
Statutes, 64 Stan. L.Rev. 1371 (2012). Imagine a pair of women who marry
in Albany and then move to Alabama, which does not "recognize as valid
any marriage of 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 visiting 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, 892 N.Y.S.2d 272, 920 N.E.2d 328 (2009). DOMA
avoided all of this uncertainty by specifying 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 circumstance. When Congress provided (for
example) that a special estate-tax exemption would exist for spouses, this
exemption reached onlyopposite-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 definitional 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, revising 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 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 supporters of this Act acted with malice with the
"purpose" (ante, at 2695) "to disparage and to injure" same-sex couples. It
says that the motivation for DOMA was to "demean," ibid.; to "impose
inequality," ante, at 2694; to "impose... a stigma," ante, at 2692; to deny
people "equal dignity," ibid.; to brand gay people as "unworthy," ante, at
2694; 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 condemn, 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-
handed2709*2709 invalidation of a presumptively valid statute is to act (the
majority is sure) withthe purpose to "disparage," "injure," "degrade,"
"demean," and "humiliate" our fellow human beings, our fellow citizens, who
are homosexual. 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 confined" to those couples "joined in
same-sex marriages made lawful by the State." Ante, at 2696, 2695. I have
heard such "bald, unreasoned disclaimer[s]" before. Lawrence, 539 U.S., at
604, 123 S.Ct. 2472. When the Court declared a constitutional 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
relationship that homosexual persons seek to enter." Id., at 578, 123 S.Ct.
2472. Now we are told that DOMA is invalid because it "demeans the couple,
whose moral and sexual choices the Constitution protects," ante, at 2694
with an accompanying citation of Lawrence. It takes real cheek for today's
majority to assure us, as it is going out the door, that a constitutional
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, pp. 2696-2697 (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'" couples in same-sex marriages. Supra, at 2691.
How easy it is, indeed how inevitable, to reach the same conclusion with
regard to state laws denying same-sex couples marital status. Consider how
easy (inevitable) it is to make the following substitutions in a passage from
today's opinion ante, at 2694:
"DOMA's This state law's principal effect is to identify a subset of state-
sanctioned marriages constitutionally protected sexual
relationships, seeLawrence, and make them unequal. The principal 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 this state law contrives to deprive some couples married
under the laws of their State enjoying constitutionally
protected2710*2710 sexual relationships, but not other couples, of both
rights and responsibilities."
Or try this passage, from ante, at 2694:
"[DOMA] This state law tells those couples, and all the world, that their
otherwise valid marriages relationships are unworthy of
federal staterecognition. 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 2694 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 understand the integrity and closeness of their own family and its concord
with other families in their community and in their daily lives."
Similarly transposable passages deliberately transposable, 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 dignity" in the first place. Ante, at 2696. 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 2695, 2696. The majority's limiting
assurance will be meaningless in the face of language like that, as the
majority well knows. That is why the language is there. The result will be a
judicial distortion 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 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 Maryland's civil marriage laws allow gay 2711*2711 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 single State, the question has
come out differently on different 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 disagreement 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 temperament. We
might have covered ourselves with honor today, by promising all sides of this
debate that it was 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.
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 intervene in that debate, and although she couches her argument 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 certain federal benefits or impose upon them certain federal
obligations.
I unconstitutional, had limited Congress' power to legislate. In discussing
I turn first to the question of standing. In my view, the 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 2712*2712 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 significantly closer question than whether the
intervenors in Hollingsworth v. Perry, ante, ___ U.S., at ___, 133 S.Ct.
1521 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, 100 S.Ct. 1166, 63 L.Ed.2d 427
(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 theHollingsworth intervenors and BLAG have standing.[1]
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. ___, ___, 131 S.Ct. 2020, 2028, 179 L.Ed.2d 1118
(2011) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112
S.Ct. 2130, 119 L.Ed.2d 351 (1992)). In the present case, the House of
Representatives, 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, 103 S.Ct. 2764, 77 L.Ed.2d 317 (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, 103 S.Ct. 2764 (internal quotation 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. *, 103 S.Ct.
2764. 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
Article III standing, 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 statute 2713*2713 is
inapplicable or unconstitutional." Id., at 940, 103 S.Ct. 2764.
The United States attempts to distinguish Chadha on 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
impairs 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 Congress' central
function, any impairment of that function is a more grievous injury than the
impairment of a procedural add-on.
The Court's decision in Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83
L.Ed. 1385 (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, 59 S.Ct.
972 ("Here, the plaintiffs include twenty senators, whose votes against
ratification have been overridden and virtually 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 effectiveness of their votes"); id., at 446,
59 S.Ct. 972 ("[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 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
passage; 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, 117 S.Ct. 2312, 138 L.Ed.2d 849
(1997), is to the contrary. In that case, the Court held that Members of
Congress who had voted "nay" to the Line Item Veto Act did not have
standing to challenge that statute in federal court. Rainesis 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, 117 S.Ct. 2312; 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)).
2714*2714 Second, the Members in Raines unlike the state senators
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 legislative action goes into
effect (or does not go into effect), on the ground that their votes have been
completely nullified." 521 U.S., at 823, 117 S.Ct. 2312. 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 endorsement of
the principle that "Congress is the proper party to defend the validity of a
statute" when the Executive refuses to do so on constitutional grounds. 462
U.S., at 940, 103 S.Ct. 2764. 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, 74 S.Ct.
693, 98 L.Ed. 884 (1954). The Court rests its holding on related arguments.
See ante, at 2694-2695.
Same-sex marriage presents a highly emotional and important question of
public policy but not a difficult question of constitutional law. The
Constitution does not 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 liberties beyond the absence of
physical restraint. And the Court's holding that "DOMA is unconstitutional as
a deprivation of the liberty of the person protected by the Fifth Amendment of
the Constitution," ante, at 2695, suggests 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 liberties which are, objectively, `deeply rooted in this
Nation's history and tradition,'" Washington v. Glucksberg, 521 U.S. 702,
720-721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997); Snyder v.
Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674
(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 sacrificed.'" Glucksberg, supra, at
721, 117 S.Ct. 2258 (quoting Palko v. Connecticut, 2715*2715 302 U.S. 319,
325-326, 58 S.Ct. 149, 82 L.Ed. 288 (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]
What Windsor and the United States seek, therefore, is not the protection of
a deeply rooted right but the recognition 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 institution. 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 understanding 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, Marriage: A Basic and Exigent Good, 91 The Monist 388, 398 (2008).
[6]
Others think 2716*2716 that recognition of same-sex marriage will fortify a
now-shaky institution. See, e.g., A. Sullivan, Virtually Normal: An Argument
About Homosexuality 202-203 (1996); J. Rauch, Gay Marriage: Why It Is
Good for Gays, Good for Straights, and Good for America 94 (2004).
At present, no one including social scientists, philosophers, and historians
can predict with any certainty what the long-term ramifications of
widespread acceptance of same-sex marriage will be. And judges are
certainly not equipped to make such an assessment. The Members of this
Court have the authority and the responsibility 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 marriage 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
governmental interests that 3 purports to serve are not sufficiently
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 2695
although the Court is careful not to adopt most of Windsor's and the United
States' argument.
In my view, the approach that Windsor and the United States advocate is
misguided. Our equal protection framework, 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 evaluating the constitutionality of laws based
on the traditional understanding of marriage, which fundamentally turn on
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 difference 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, 92 S.Ct. 251, 30 L.Ed.2d 225
(1971) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40
S.Ct. 560, 64 L.Ed. 989 (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, 92 S.Ct. 251.
2717*2717 So, for example, those classifications subject to strict scrutiny
i.e.,classifications that must be "narrowly tailored" to achieve a
"compelling" government interest, Parents Involved in Community Schools v.
Seattle School Dist. No. 1, 551 U.S. 701, 720, 127 S.Ct. 2738, 168 L.Ed.2d
508 (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, 105
S.Ct. 3249, 87 L.Ed.2d 313 (1985); cf. id., at 452-453, 105 S.Ct.
3249(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 "important governmental objective[s]," United States v.
Virginia, 518 U.S. 515, 524, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996); id., at
567, 116 S.Ct. 2264 (SCALIA, J., dissenting) are those that
are sometimes relevant considerations to be taken into account by
legislators, but "generally provid[e] no sensible ground for different
treatment," Cleburne, supra, at 440, 105 S.Ct. 3249. 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, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981) (plurality
opinion). 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 classifications based on gender are
"arbitrary," Reed, supra, at 76, 92 S.Ct. 251, and based on "outmoded
notions of the relative capabilities of men and women," Cleburne, supra, at
441, 105 S.Ct. 3249, as when a State provides that a man must always be
preferred to an equally qualified woman when both seek to administer the
estate of a deceased party, see Reed, supra, at 76-77, 92 S.Ct. 251.
Finally, so-called rational-basis review applies to classifications based on
"distinguishing characteristics relevant to interests the State has the
authority to implement." Cleburne, supra, at 441, 105 S.Ct. 3249. 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 various groups or persons." Romer v.
Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). As a
result, in rational-basis cases, where the court does not view the
classification at issue as "inherently suspect," Adarand Constructors, Inc. v.
Pen, 515 U.S. 200, 218, 115 S.Ct. 2097, 132 L.Ed.2d 158 (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 be pursued." Cleburne, supra, at 441-
442, 105 S.Ct. 3249.
In asking the Court to determine that 3 of DOMA is subject to and violates
heightened scrutiny, Windsor and the 2718*2718 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
marriage in the role of bigots or superstitious fools.
By asking the Court to strike down DOMA as not satisfying 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 "traditional" 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 (citingHernandez v. Robles, 7 N.Y.3d 338, 361,
821 N.Y.S.2d 770, 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 attempts 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 essentially the
solemnizing of a comprehensive, exclusive, permanent 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:
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 biological 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
attraction 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
traditional 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, thereby arrogating
to ourselves the power to decide a question that philosophers, historians,
social scientists, and theologians are better qualified to explore.[7]Because
our constitutional 2719*2719 order assigns the resolution of questions of this
nature to the people, I would not presume to enshrine either vision of
marriage in our constitutional jurisprudence.
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, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) ("[T]he
government `may make a value judgment favoring childbirth over abortion'"
(quoting Maher v. Roe, 432 U.S. 464, 474, 97 S.Ct. 2376, 53 L.Ed.2d 484
(1977))). Accordingly, both Congress 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 2693 ("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 2720*2720 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 (C.A.1 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 proper." Ante, at 2695-2696 (emphasis
added).
To the extent that the Court takes the position that the question of same-sex
marriage should be resolved primarily 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 encroach 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 extending 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 certain 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 valuable 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.
[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.
[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 Presidential 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 constitutionality of an Act of Congress based on
a constitutional theory not yet established in judicial decisions," ante, at
2688. 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.
[3] Justice ALITO attempts to limit his argument by claiming that Congress is
injured (and can therefore appeal) when its statute is held unconstitutional
without Presidential defense, but is notinjured 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
unconstitutional 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
theinoperativeness that constitutes the injury the "impairment of [the
legislative] function," as Justice ALITO puts it, post, at 2704 it should
make no difference which of the other two branches inflicts it, and whether
the Constitution is the pretext. A principled and predictable system of
jurisprudence 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, 117 S.Ct.
2312, 138 L.Ed.2d 849 (1997), which involved an original suit by Members of
Congress challenging an assertedly unconstitutional law, would have been
written quite differently; and Justice ALITO's distinguishing of that case on
grounds quite irrelevant to his theory of standing would have been
unnecessary.
[4] Such a suggestion would be impossible, given the Federal Government'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").
[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, 93 S.Ct. 2821.
[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 General
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).
[1] Our precedents make clear that, in order to support our jurisdiction,
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, 106 S.Ct. 1697, 90 L.Ed.2d 48 (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, 117
S.Ct. 1055, 137 L.Ed.2d 170 (1997) ("Standing to defend on appeal in the
place of an original defendant, no less than standing to sue, demands that
the litigant possess a direct stake in the outcome" (internal quotation marks
omitted)); id., at 65, 117 S.Ct. 1055 ("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] continues
to speak for, and articulates the institutional position of, the House in all
litigation matters in which it appears, including in Windsor v. United States").
[3] Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), is not
to the contrary. The Court's statements there concerned enforcement, not
defense.
[4] Curry-Sumner, A Patchwork of Partnerships: Comparative Overview 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
document 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).
[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 message that would
undermine the social boundaries relating to marriage 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 Gallagher, (How) Will Gay Marriage Weaken Marriage as
a Social Institution: 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
interests 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 compassionate 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").
[7] The degree to which this question is intractable to typical judicial
processes of decision-making was highlighted by the trial in Hollingsworth v.
Perry, 558 U.S. 183, 130 S.Ct. 705, 175 L.Ed.2d 657 (2010). In that case,
the trial judge, after 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
(N.D.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 another 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 constitutional law
have argued that we are bound to accept the trial judge's findings
including those on major philosophical questions and predictions 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.