NOTICE: This opinion is subject to
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 12–307

															_________________

															UNITED STATES, PETITIONER v. EDITH SCHLAIN
WINDSOR, in her capacity as executor of the ESTATE OF THEA CLARA
SPYER, et al.

															on writ of certiorari to the united states
court of appeals for the second circuit

															[June 26, 2013]

															     Justice Kennedy
delivered the opinion of the Court.

															     Two women then resident
in New York were married in a lawful ceremony in Ontario, Canada,
in 2007. Edith Windsor and Thea Spyer returned to their home in New
York City. When Spyer died in 2009, she left her entire estate to
Windsor. Windsor sought to claim the estate tax exemption for
surviving spouses. She was barred from doing so, however, by a
federal law, the Defense of 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), 110Stat. 2419. DOMA contains two
operative sections: Section 2, which has not been challenged here,
allows States to refuse to recognize same-sex marriages performed
under the laws of other States. See 28 U. S. C.
§1738C.

															     Section 3 is at issue
here. It amends the Dictionary Act in Title 1, §7, of the United
States Code to provide a fed- eral definition of “marriage” and
“spouse.” Section 3 of DOMA provides as follows:

															     “In determining
the meaning of any Act of 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 (CA2 2012).

															     Spyer died in February
2009, and left her entire estate to Windsor. Because DOMA denies
federal recognition to same-sex spouses, Windsor did not qualify
for the marital exemption from the federal estate tax, which
excludes from taxation “any interest in property which passes or
has passed from the decedent to his surviving spouse.” 26
U. S. C. §2056(a). Windsor paid $363,053 in estate taxes
and sought a refund. The Internal Revenue Service 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 scrutiny should apply to laws that
classify on the basis of sexual orientation.

															     Although “the President
. . . instructed the Department not to defend the statute
in Windsor,” he also decided “that Section 3 will continue to be
enforced by the 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 judg- ment. Windsor has not received her
refund, and the Ex- ecutive Branch continues to enforce §3 of
DOMA.

															     In granting certiorari
on the question of the 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. ___ (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 (2007) (plurality
opinion) (emphasis deleted). Windsor suffered a redressable injury
when she was required to pay estate taxes from which, in her view,
she was exempt 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 (fail- ure to obtain a
refund allegedly required by law) was concrete, persisting, and
unredressed. The Government’s position—agreeing with Windsor’s
legal contention but refusing to give it effect—meant that there
was a justiciable controversy between the parties, despite what the
claimant would find to be an inconsistency in that stance. Windsor,
the Government, BLAG, and the amicus appear to agree upon that
point. The disagreement is over the standing of the parties, or
aspiring parties, to take an appeal in the Court of Appeals and to
appear as parties in further proceedings in this Court.

															     The amicus’ position is
that, given the Government’s concession that §3 is
unconstitutional, once the District Court ordered the refund the
case should have ended; and the amicus argues the Court of Appeals
should have dismissed the appeal. The amicus submits that once the
President agreed with Windsor’s legal position and the District
Court issued its judgment, the parties were no longer adverse. From
this standpoint the United States was a prevailing party below,
just as Windsor was. 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 (1975) . The
latter are “essentially matters of judicial self-governance.” Id.,
at 500. The Court has kept these two strands separate: “Article III
standing, which enforces the Constitution’s case-or-controversy
requirement, see Lujan v. Defenders of Wildlife, 504 U. S. 555
–562 (1992); and prudential standing, which embodies ‘judicially
self-imposed limits on the exer- cise of federal jurisdiction,’
Allen [v. Wright,] 468 U. S. [737,] 751 [(1984)].” Elk Grove
Unified School Dist. v. Newdow, 542 U. S. 1 –12 (2004).

															     The requirements of
Article III standing are familiar:

															“First, the plaintiff must have suffered
an ‘injury in fact’—an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) ‘actual or
imminent, not “conjectural or hypothetical.” ’ Second, there
must be a causal connection between the injury and the conduct
complained of—the injury has to be ‘fairly . . .
trace[able] to the challenged action of the defendant, and not
. . . th[e] result [of] the 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 favor- able decision.’ ” Lujan, supra, at 560–561
(footnote and citations omitted).

															Rules of prudential standing, by contrast, are
more flex- ible “rule[s] . . . of federal appellate
practice,” Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326,
333 (1980) , designed to protect the courts from “decid[ing]
abstract questions of wide public significance even [when] other
governmental institutions may be more competent to ad- dress the
questions and even though judicial intervention may be unnecessary
to protect individual rights.” Warth, supra, at 500.

															     In this case the United
States retains a stake sufficient to support Article III
jurisdiction on appeal and in 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, 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 (1983) . A
statute by its terms allowed one House of Congress to order the
Immigration and Naturalization Service (INS) to deport the
respondent Chadha. There, as here, the Executive determined that
the statute was unconstitutional, and “the INS presented the
Executive’s views on the constitutionality of the House action to
the Court of Appeals.” Id., at 930. The INS, however, continued to
abide by the statute, and “the INS brief to the Court of Appeals
did not alter the agency’s decision to comply with the House action
ordering deportation of Chadha.” Ibid. This Court held “that the
INS was sufficiently aggrieved by the Court of Appeals deci- sion
prohibiting it from taking action it would otherwise take,” ibid.,
regardless of whether the agency welcomed the judgment. The
necessity of a “case or controversy” to 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 (quoting Chadha v. INS, 634
F. 2d 408, 419 (CA9 1980)). This conclusion was not dictum. It
was a necessary predicate to the Court’s holding that “prior to
Congress’ intervention, there was adequate Art. III
adverseness.” 462 U. S., at 939. 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 intended to enforce the challenged law
against that party.” Id., at 940, n. 12.

															     It is true that “[a]
party who receives all that he has sought generally is not
aggrieved by the judgment affording the relief and cannot appeal
from it.” Roper, supra, at 333, see also Camreta v. Greene, 563
U. S. ___, ___ (2011) (slip op., at 8) (“As a matter of
practice and prudence, we have generally declined to consider cases
at the request of a prevailing party, even when the Constitution
allowed us to do so”). But this rule “does not have its source in
the jurisdictional limitations of Art. III. In an appropriate case,
appeal may be permitted . . . at the behest of the party
who has prevailed on the merits, so long as that party retains a
stake in the appeal satisfying the requirements of Art. III.”
Roper, supra, at 333–334.

															     While these principles
suffice to show that this case presents a justiciable controversy
under Article III, the prudential problems inherent in the
Executive’s unusual position require some further discussion. The
Executive’s agreement with Windsor’s legal argument raises the risk
that instead of a “ ‘real, earnest and vital
controversy,’ ” the Court faces a “friendly, non-adversary,
proceeding . . . [in which] ‘a party beaten in the
legislature [seeks to] transfer to the courts an inquiry as to the
constitutionality of the legislative act.’ ” Ashwander v. TVA,
297 U. S. 288, 346 (1936) (Brandeis, J., concurring) (quoting
Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339,
345 (1892) ). Even when Article III permits the exercise of federal
jurisdiction, prudential considerations demand that the Court
insist upon “that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.” Baker v. Carr,
369 U. S. 186, 204 (1962) .

															     There are, of course,
reasons to hear a case and issue a ruling even when one party is
reluctant to prevail in its position. Unlike Article III
requirements—which must be satisfied by the parties before judicial
consideration is appropriate—the relevant prudential factors that
counsel against hearing this case are subject to “countervailing
considerations [that] may outweigh the concerns underlying the
usual reluctance to exert judicial power.” Warth, 422 U. S.,
at 500–501. One consideration is the extent to which adversarial
presentation of the issues is assured by the participation of amici
curiae prepared to defend with vigor the constitutionality of the
legislative act. With respect to this prudential aspect of standing
as well, the Chadha Court encountered a similar situation. It noted
that “there may be prudential, as opposed to Art. III, concerns
about sanctioning the adjudication of [this case] in the absence of
any participant supporting the validity of [the statute]. The Court
of Appeals properly dispelled any such concerns by inviting and
accepting briefs from both Houses of Congress.” 462 U. S., at
940. Chadha was not an anomaly in this respect. The Court adopts
the practice of entertaining arguments made by an amicus when the
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 (2000) .

															     In the case now before
the Court the attorneys for BLAG present a substantial argument for
the constitutionality of §3 of DOMA. BLAG’s sharp adversarial
presentation of the issues satisfies the prudential concerns that
otherwise might counsel against hearing an appeal from a decision
with which the principal parties agree. Were this Court to hold
that prudential rules require it to dismiss the case, and, in
consequence, that the Court of Appeals erred in failing to dismiss
it as well, extensive litigation would ensue. The district courts
in 94 districts throughout the Nation would be without precedential
guidance not only in tax refund suits but also in cases involving
the whole of DOMA’s sweep involving over 1,000 federal statutes and
a myriad of federal regulations. For instance, the opinion of the
Court of Appeals for the First Circuit, addressing the validity of
DOMA in a case involving regulations of the Department of Health
and Human Services, likely would be vacated with instructions to
dismiss, its ruling and guidance also then erased. See
Massachusetts v. United States Dept. of Health and Human Servs.,
682 F. 3d 1 (CA1 2012). Rights and privileges of hundreds of
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 Execu- tive’s agreement with a
plaintiff that a law is unconsti- tutional is enough to preclude
judicial review, then the Supreme Court’s primary role in
determining the 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. ___, ___ (2012) (slip op., at 7) (quoting
Marbury v. Madison, 1 Cranch 137, 177 (1803)). Similarly, with
respect to the legislative power, when Congress has passed a
statute and a 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.

															     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 consti- tutional issues were simply
referred to the Court as a routine exercise. But this case is not
routine. And the capable defense of the law by BLAG ensures that
these prudential issues do not cloud the merits question, which is
one of immediate importance to the Federal Government and to
hundreds of thousands of persons. These cir- cumstances support the
Court’s decision to proceed to the merits.

															III

															     When at first Windsor
and Spyer longed to marry, 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 been 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
pre-empt state laws, allowing a former spouse to retain life
insurance proceeds under a federal program that gave her priority,
because of formal beneficiary designation rules, over the wife by a
second marriage who survived the husband. Hillman v. Maretta, 569
U. S. ___ (2013); see also Ridgway v. Ridgway, 454 U. S.
46 (1981) ; Wissner v. Wissner, 338 U. S. 655 (1950) . This is
one example of the general 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 (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: / / w w w.maine.gov/sos/cec/elec/2012/tab - ref-2012.html
(all Internet sources as visited June 18, 2013, and avail- able in
Clerk of Court’s case file)); Md. Fam. Law Code Ann. §2–201 (Lexis
2012); An Act to Amend Title 13 of the Delaware Code Relating to
Domestic Relations to Provide for Same-Gender Civil Marriage and to
Convert Exist- ing Civil Unions to Civil Marriages, 79 Del. Laws
ch. 19 (2013); An act relating to marriage; providing for civil
marriage between two persons; providing for exemptions and
protections based on religious association, 2013 Minn. Laws ch. 74;
An Act Relating to Domestic Relations—Persons Eligible to Marry,
2013 R. I. Laws ch. 4.

															     In order to assess the
validity of that intervention it is necessary to discuss the extent
of the state power and au- thority over marriage as a matter of
history and tradi- tion. State laws defining and regulating
marriage, of course, must respect the constitutional rights of
persons, see, e.g., Loving v. Virginia, 388 U. S. 1 (1967) ;
but, subject to those guarantees, “regulation of domestic
relations” is “an area that has long been regarded as a virtually
exclusive province of the States.” Sosna v. Iowa, 419 U. S.
393, 404 (1975) .

															     The recognition of
civil marriages is central to state domestic relations law
applicable to its residents and citizens. See Williams v. North
Carolina, 317 U. S. 287, 298 (1942) (“Each state as a
sovereign has a rightful and legitimate concern in the marital
status of persons 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 (1906) ; see also In re Burrus, 136
U. S. 586 –594 (1890) (“The whole subject of the domestic
relations of husband and wife, parent and child, belongs to the
laws of the States and not to the laws of the United States”).

															     Consistent with this
allocation of authority, the Federal Government, through our
history, has deferred to state-law policy decisions with respect to
domestic relations. In De Sylva v. Ballentine, 351 U. S. 570
(1956) , for example, the Court held that, “[t]o decide who is the
widow or 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. 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 (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 (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 –384 (1930). Marriage laws vary in some
respects from State to State. For example, the required minimum age
is 16 in Vermont, but only 13 in New Hampshire. Compare Vt. Stat.
Ann., Tit. 18, §5142 (2012), with N. H. Rev. Stat. Ann. §457:4
(West Supp. 2012). Likewise the permissible degree of consanguinity
can vary (most States permit first cousins to marry, but a
handful—such as Iowa and Washington, see Iowa Code §595.19 (2009);
Wash. Rev. Code §26.04.020 (2012)—prohibit the practice). But these
rules are in every event consistent within each State.

															     Against this background
DOMA rejects the long-established precept that the incidents,
benefits, and 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 tra- dition of reliance on state law to
define marriage. “ ‘[D]is-criminations of an unusual character
especially sug- gest careful consideration to determine whether
they are obnoxious to the constitutional provision.’ ” Romer
v. Evans, 517 U. S. 620, 633 (1996) (quoting Louisville Gas
& Elec. Co. v. Coleman, 277 U. S. 32 –38 (1928)).

															     The Federal Government
uses this state-defined class for the opposite purpose—to impose
restrictions and dis- abilities. That result requires this Court
now to address whether the resulting injury and indignity is a
deprivation of an essential part of the liberty protected by the
Fifth Amendment. What the State of New York treats as alike the
federal law deems unlike by a law designed to injure the same class
the State seeks to protect.

															     In acting first to
recognize and then to allow same-sex marriages, New York was
responding “to the initiative of those who [sought] a voice in
shaping the destiny of their own times.” Bond v. United States, 564
U. S. ___, ___ (2011) (slip op., at 9). These actions were
without doubt a proper exercise of its sovereign authority within
our fed- eral system, all in the way that the Framers of the
Constitu-tion intended. The dynamics of state government in the
federal system are to allow the formation of consensus respecting
the way the members of a discrete community treat each other in
their daily contact and constant 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
(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 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 (1954) . The Constitution’s guarantee of
equality “must at the very least mean that a bare con- gressional
desire to harm a politically unpopular group cannot” justify
disparate treatment of that group. Depart- ment of Agriculture v.
Moreno, 413 U. S. 528 –535 (1973). In determining whether a
law is motived by an improper animus or purpose,
“ ‘[d]iscriminations of an un- usual character’ ”
especially require careful considera- tion. Supra, at 19 (quoting
Romer, supra, at 633). DOMA cannot survive under these principles.
The responsibility of the States for the regulation of domestic
relations is an important indicator of the substantial societal
impact the State’s classifications have in the daily lives and
customs of its people. DOMA’s unusual deviation from the usual
tradition of recognizing and accepting state definitions of
marriage here operates to deprive same-sex couples of the benefits
and responsibilities that come with the federal recognition of
their marriages. This is strong evidence of a 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 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 fed- eral law.
DOMA writes inequality into the entire United States Code. The
particular case at hand concerns the estate tax, but DOMA is more
than a simple determi- nation of what should or should not be
allowed as an estate tax refund. Among the over 1,000 statutes and
numerous federal regulations that DOMA controls are laws pertaining
to Social Security, housing, taxes, 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 , 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 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 re- duces benefits allowed to families upon the loss of a
spouse and parent, benefits that are an integral part of family
security. See Social Security Administration, Social 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 fed- eral 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. See Bolling, 347 U. S., at 499–500; Adarand
Constructors, Inc. v. Peña, 515 U. S. 200 –218 (1995). While
the Fifth Amendment itself withdraws from Government the power to
degrade or demean in the way this law does, the equal protection
guarantee of the Fourteenth 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
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. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 12–307

															_________________

															UNITED STATES, PETITIONER v. EDITH SCHLAIN
WINDSOR, in her capacity as executor of the ESTATE OF THEA CLARA
SPYER, et al.

															on writ of certiorari to the united states
court of appeals for the second circuit

															[June 26, 2013]

															     Chief Justice
Roberts, dissenting.

															     I agree with Justice
Scalia that this Court lacks 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 am- ply justified
Congress’s decision to retain the definition of marriage that, at
that point, had been adopted by every State in our Nation, and
every nation in the world. Post, at 19–20 (dissenting opinion).

															     The majority sees a
more sinister motive, pointing out that the Federal Government has
generally (though not uniformly) deferred to state definitions of
marriage in the past. That is true, of course, but none of those
prior state-by-state variations had involved differences over
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 13. That
the Federal Government treated this fundamental question
differently than it treated variations over consanguinity or
minimum age is hardly surprising—and hardly enough to support a
conclusion that the “principal purpose,” ante, at 22, of the 342
Representa- tives and 85 Senators who voted for it, and the
President who signed it, was a bare desire to harm. Nor do the
snip- pets of legislative history and the banal title of the Act to
which the majority points suffice to make such a 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 major- ity’s analysis leads it in this
case, I think it more important to point out that its analysis
leads no further. The Court does not have before it, and the logic
of its opinion does not decide, the distinct question whether the
States, in the exercise of their “historic and essential authority
to define the marital relation,” ante, at 18, may continue to
utilize the traditional definition of marriage.

															     The majority goes out
of its way to make this explicit in the penultimate sentence of its
opinion. It states that “[t]his opinion and its holding are
confined to those lawful marriages,” ante, at 26—referring to
same-sex marriages that a State has already recognized as a result
of the local “community’s considered perspective on the historical
roots of the institution of marriage and its evolving un-
derstanding of the meaning of equality.” Ante, at 20. Justice
Scalia believes this is a “ ‘bald, unreasoned
disclaime[r].’ ” Post, at 22. In my view, though, the
disclaimer is a logical and necessary consequence of the argument
the majority has chosen to adopt. The dominant theme of the
majority opinion is that the Federal Government’s intrusion into an
area “central to state domestic relations law applicable to its
residents and citizens” is sufficiently “unusual” to set off alarm
bells. Ante, at 17, 20. I think the majority goes off course, as I
have said, but it is 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 18. 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 19.

															     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 21; those statute-specific considerations
will, of course, be irrelevant in future cases about different
statutes. The majority emphasizes that DOMA was a “system- wide
enactment with no identified connection to any particular area of
federal law,” but a State’s definition of marriage “is the
foundation of the State’s broader author- ity to regulate the
subject of domestic relations with respect to the ‘[p]rotection of
offspring, property interests, and the enforcement of marital
responsibilities.’ ” Ante, at 22, 17. And the federal decision
undermined (in the majority’s view) the “dignity [already]
conferred by the States in the exercise of their sovereign power,”
ante, at 21, whereas a State’s decision whether to expand the
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 of Hollingsworth v. Perry, ante, p. ___. I
write only to highlight the limits of the majority’s holding and
reasoning today, lest its opinion be taken to resolve not only a
question that I believe is not properly before us—DOMA’s
constitutionality—but also a question that all agree, and the Court
explicitly acknowledges, is not at issue. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 12–307

															_________________

															UNITED STATES, PETITIONER v. EDITH SCHLAIN
WINDSOR, in her capacity as executor of the ESTATE OF THEA CLARA
SPYER, et al.

															on writ of certiorari to the united states
court of appeals for the second circuit

															[June 26, 2013]

															     Justice Scalia, with
whom Justice Thomas joins, and with whom The Chief Justice joins as
to Part I, dissenting.

															     This case is about
power in several respects. It is about the power of our people to
govern themselves, and the power of this Court to pronounce the
law. Today’s opinion aggrandizes the latter, with the predictable
consequence of diminishing the former. We have no power to decide
this case. And even if we did, we have no power under the
Constitution to invalidate this democratically adopted leg-
islation. The Court’s errors on both points spring forth from the
same diseased root: an exalted conception of the role of this
institution in America.

															I

															A

															     The Court is
eager—hungry—to tell everyone its view of the legal question at the
heart of this case. Standing in the way is an obstacle, a
technicality of little interest to anyone but the people of We the
People, who created it as a barrier against judges’ intrusion into
their lives. They gave judges, in Article III, only the “judicial
Power,” a power to decide not abstract questions but real, concrete
“Cases” and “Controversies.” Yet the plaintiff and the Gov- ernment
agree entirely on what should happen in this lawsuit. They agree
that the court below got it right; and they agreed in the court
below that the court below that one got it right as well. What,
then, are we doing here?

															     The answer lies at the
heart of the jurisdictional portion of today’s opinion, where a
single sentence lays bare the majority’s vision of our role. The
Court says that we have the power to decide this case because if we
did not, then our “primary role in determining the
constitutionality of a law” (at least one that “has inflicted real
injury on a plaintiff”) would “become only secondary to the
President’s.” Ante, at 12. But wait, the reader wonders—Windsor won
below, and so cured her injury, and the President was glad to see
it. True, says the majority, but judicial review must march on
regardless, lest we “undermine the clear dictate of the
separation-of-powers principle that when an Act of Congress is
alleged to conflict with the Constitution, it is emphatically the
province and duty of the judicial 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 every- where “primary” in its role.

															     This image of the Court
would have been unrecognizable to those who wrote and ratified our
national charter. They knew well the dangers of “primary” power,
and so created branches of government that would be “perfectly
co-ordinate by the terms of their common commission,” none of which
branches could “pretend to an exclusive or superior right of
settling the boundaries between their respec- tive powers.” The
Federalist, No. 49, p. 314 (C. Rossiter ed. 1961) (J. Madison). The
people did this to protect 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 12. We can do so only when that
allegation will determine the outcome of a lawsuit, and is
contradicted by the other party. The “judicial Power” is not, as
the major- ity believes, the power “ ‘to say what the law
is,’ ” ibid., giving the Supreme Court the “primary role in
determining the constitutionality of laws.” The majority must have
in mind one of the foreign constitutions that pronounces such
primacy for its constitutional court and allows that primacy to be
exercised in contexts other than a lawsuit. See, e.g., Basic Law
for the Federal Republic of Germany, Art. 93. The judicial power as
Americans have understood it (and their English ancestors before
them) is the power to adjudicate, with conclusive effect, disputed
govern- ment claims (civil or criminal) against private persons,
and disputed claims by private persons against the 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 only with regard to the facts) but with regard to the
applicable law—in which event (and only in which event) it becomes
the “ ‘province and duty of the judicial department to say
what the law is.’ ” Ante, at 12.

															     In other words,
declaring the compatibility of state or federal laws with the
Constitution is not only not the “primary role” of this Court, it
is not a separate, free-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 (1974) ; United States v. Richardson, 418
U. S. 166, 179 (1974) . As Justice Bran- deis put it, we
cannot “pass upon the constitutionality of legislation in a
friendly, non-adversary, proceeding”; 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 (1936) (concurring opinion) (quoting
Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339,
345 (1892) ). Our authority begins and ends with the need to
adjudge the rights of an injured party who stands before us seeking
redress. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560
(1992) .

															     That is completely
absent here. Windsor’s injury was cured by the judgment in her
favor. And while, in 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 ] 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 ele- vate a District Court judgment that has no
precedential effect in other courts, to one that has precedential
effect throughout the Second Circuit, and then (in this Court)
precedential effect throughout the United States.

															     We have never before
agreed to speak—to “say what the law is”—where there is no
controversy before us. In the more than two centuries that this
Court has existed as an institution, we have never suggested that
we have the power to decide a question when every party agrees with
both its nominal opponent and the court below on that question’s
answer. The United States reluctantly con- ceded that at oral
argument. See Tr. of Oral Arg. 19–20.

															     The closest we have
ever come to what the Court blesses today was our opinion in INS v.
Chadha, 462 U. S. 919 (1983) . But in that case, two parties
to the litigation

															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 legis- lative 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.
But in a footnote to that statement, the Court acknowledged Arti-
cle III’s separate requirement of a “justiciable case or
controversy,” and stated that this requirement was satisfied
“because of the presence of the two Houses of Congress as adverse
parties.” Id., at 931, n. 6. Later in its opinion, the Chadha
Court remarked that the United States’ announced intention to
enforce the statute also sufficed to permit judicial review, even
absent congressional participation. Id., at 939. That remark is
true, as a description of the judicial review conducted in the
Court of Appeals, where the Houses of Congress had not inter-

															vened. (The case originated in the Court of
Appeals, since it sought review of agency action under 8
U. S. C. §1105a(a) (1976 ed.).) There, absent a judgment
setting aside the INS order, Chadha faced deportation. This pas-
sage of our opinion seems to be addressing that initial standing in
the Court of Appeals, as indicated by its quotation from the lower
court’s opinion, 462 U. S., at 939–940. But if it was
addressing standing to pursue the appeal, the remark was both the
purest dictum (as congressional intervention at that point made the
required adverseness “beyond doubt,” id., at 939), 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 decree seek to undo it. In Chadha, the
intervening House and Senate fulfilled that requirement. Here no
one does.

															     The majority’s
discussion of the requirements of Article III bears no resemblance
to our jurisprudence. It accuses the amicus (appointed to argue
against our jurisdiction) of “elid[ing] the distinction between
. . . the jurisdictional requirements of Article III and
the prudential limits on its exercise.” Ante, at 6. It then
proceeds to call the 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 7—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 but an
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 requires
contradiction) 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 re- quirement to “prudential” status is a wondrous
device, enabling courts to ignore the requirement whenever they
believe it “prudent”—which is to say, a good idea.) Half a century
ago, a Court similarly bent upon announcing its view regarding the
constitutionality of a federal statute achieved that goal by
effecting a remarkably similar but completely opposite distortion
of the principles limiting our jurisdiction. The Court’s notorious
opinion in Flast v. Cohen, 392 U. S. 83 –101 (1968), held that
standing was merely an element (which it pronounced to be a
“prudential” element) of the sole Article III requirement of
adverseness. We have been living with the chaos created by that
power-grabbing decision ever since, see Hein v. Freedom From
Religion Foundation, Inc., 551 U. S. 587 (2007) , as we will
have to live with the chaos created by this one.

															     The authorities the
majority cites fall miles short of supporting the counterintuitive
notion that an Article III “controversy” can exist without
disagreement between the parties. In Deposit Guaranty Nat. Bank v.
Roper, 445 U. S. 326 (1980) , the District Court had entered
judgment in the individual plaintiff’s favor based on the defendant
bank’s offer to pay the full amount claimed. The plaintiff,
however, sought to appeal the District Court’s denial of class
certification under Federal Rule of Civil Procedure 23. There was a
continuing dispute between the parties concerning the issue raised
on appeal. The same is true of the other case cited by the
majority, Camreta v. Greene, 563 U. S. ___ (2011). There the
District Court found that the defendant state officers had violated
the Fourth Amendment, but rendered judgment in their favor because
they were entitled to official immunity, application of the Fourth
Amendment to their conduct not having been clear at the time of
violation. The officers sought to appeal the holding of Fourth
Amendment violation, which would circumscribe their future conduct;
the plaintiff continued to insist that a Fourth Amendment violation
had occurred. The “prudential” discretion to which both those cases
refer was the discretion to deny an appeal even when a live
controversy exists—not the discretion to grant one when it does
not. The majority can cite no case in which this Court entertained
an appeal in which both parties urged us to affirm the judgment
below. And that is because the existence of a controversy is not a
“prudential” 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 10, 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
en- forcing an unconstitutional law, suit will of course lie; but
if, in that suit, the Executive admits the unconstitution- ality of
the law, the litigation should end in an order or a consent decree
enjoining enforcement. This suit saw the light of day only because
the President enforced the Act (and thus gave Windsor standing to
sue) even though he believed it unconstitutional. He could have
equally chosen (more appropriately, some would say) neither to
enforce nor to defend the statute he believed to be unconstitu-
tional, see Presidential Authority to Decline to Execute Un-
constitutional Statutes, 18 Op. Off. Legal Counsel 199 (Nov. 2,
1994)—in which event Windsor would not have been injured, the
District Court could not have refereed this friendly scrimmage, and
the Executive’s 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
(1803) that “[i]t is emphatically the province and duty of the
judicial department to say what the law is.” Ante, at 12 (internal
quotation marks omitted). But that sentence neither says nor
implies that it is always the province and duty of the Court to say
what the law is—much less that its 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 ma- jority ought instead to have consulted the
opinion of Chief Justice Taney in Lord v. Veazie, 8 How. 251
(1850):

															“The objection in the case before us is
. . . that the plaintiff and defendant have the same
interest, and that interest adverse and in conflict with the
interest of third persons, whose rights would be seriously 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.

															B

															     A few words in
response to the theory of jurisdiction set forth in Justice Alito’s
dissent: Though less far reach- ing in its consequences than the
majority’s conversion of constitutionally required adverseness into
a discretionary element of standing, the theory of that dissent
similarly elevates the Court to the “primary” determiner of
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 his- tory, 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
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 in Raines v. Byrd, 521 U. S. 811, 828 (1997) , if
Congress can sue the Executive for the erroneous application of the
law that “injures” its power to legislate, surely the Executive can
sue Congress for its erroneous adoption of an unconstitutional law
that “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 hith- erto left
for political resolution are endless.

															     Justice Alito’s dissent
is correct that Raines did not formally decide this issue, but its
reasoning does. The opinion spends three pages discussing famous,
decades-long disputes between the President and Congress—regarding
congressional power to forbid the Presidential removal of executive
officers, regarding the legislative veto, regarding congressional
appointment of executive officers, and regarding the pocket
veto—that would surely have been promptly resolved by a
Congress-vs.-the-President lawsuit if the impairment of a branch’s
powers alone conferred standing to commence litigation. But it does
not, and never has; the “enormous power that the judiciary would
acquire” from the ability to adjudicate such suits “would have made
a mockery of [Hamilton’s] quotation of Montesquieu to the effect
that ‘of the three powers above mentioned . . . the
JUDICIARY is next to nothing.’ ” Barnes v. Kline, 759
F. 2d 21, 58 (CADC 1985) (Bork, J., dissenting) (quoting The
Federalist No. 78 (A. Hamilton)).

															     To be sure, if Congress
cannot invoke our authority in the way that Justice Alito proposes,
then its only 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 Houses of Congress
care enough about the matter, they have available innumerable ways
to com- pel executive action without a lawsuit—from refusing to
confirm Presidential appointees to the elimination of funding.
(Nothing says “enforce the Act” quite like “. . . or you
will have money for little else.”) But the condition is crucial;
Congress must care enough to act against the President itself, not
merely enough to instruct its lawyers to ask us to do so. Placing
the Constitution’s entirely anticipated political arm wrestling
into permanent judicial receivership does not do the system a
favor. And by the way, if the President loses the lawsuit but does
not 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

															     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 vio- lation of the
Constitution,” and that “[t]he State’s power in defining the
marital relation is of central relevance in this case quite apart
from principles of federalism” be- cause “the State’s decision to
give this class of persons the right to marry conferred upon them a
dignity and status of immense import.” Ante, at 18. But no one
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 20. What to make of this?
The opinion never explains. My guess is that the majority, while
reluctant to suggest that defining the meaning of “marriage” in
federal 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 Amendment [due process] right all the
more specific and all the better understood and preserved”—what can
that mean?—“the Fifth Amendment itself withdraws from Government
the power to degrade or demean in the way this law does.” Ante, at
25. The only possible 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 (1954) , Department of
Agriculture v. Moreno, 413 U. S. 528 (1973) , and Romer v.
Evans, 517 U. S. 620 (1996) —all of which are equal-protection
cases. [ 5 ] And those three
cases are the only authorities that the Court cites in Part IV
about the Constitution’s meaning, except for its citation of
Lawrence v. Texas, 539 U. S. 558 (2003) (not an
equal-protection case) to support its passing assertion that the
Constitution protects the “moral and sexual choices” of same-sex
couples, ante, at 23.

															     Moreover, if this is
meant to be an equal-protection opinion, it is a confusing one. The
opinion does not resolve and indeed does not even mention what had
been the

															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 (CA2
2012) (yes), with id., at 208–211 (Straub, J., dissenting in part
and concurring in part) (no). In accord with my previously
expressed skepticism about the Court’s “tiers of scrutiny”
approach, I would review this classification only for its
rationality. See United States v. Virginia, 518 U. S. 515 –570
(1996) (Scalia, J., dissenting). As nearly as I can tell, the Court
agrees with that; its opinion does not apply strict scrutiny, and
its central propositions are taken from rational-basis cases like
Moreno. But the Court certainly does not apply anything that
resembles that deferential framework. See Heller v. Doe, 509
U. S. 312, 320 (1993) (a classification “ ‘must be upheld
. . . if there is any reason- ably conceivable state of
facts’ ” that could justify it).

															     The majority opinion
need not get into the strict-vs.-rational-basis scrutiny question,
and need not justify its holding under either, because it says that
DOMA is unconstitutional as “a deprivation of the liberty of the
person protected by the Fifth Amendment of the Constitution,” ante,
at 25; that it violates “basic due process” principles, ante, at
20; and that it inflicts an “injury and indignity” of a kind that
denies “an essential part of the liberty pro- tected by the Fifth
Amendment,” ante, at 19. The majority never utters the dread words
“substantive due process,” perhaps sensing the disrepute into which
that doctrine has fallen, but that is what those statements mean.
Yet the opinion does not argue that same-sex marriage is “deeply
rooted in this Nation’s history and tradition,” Washington v.
Glucksberg, 521 U. S. 702 –721 (1997), a claim that would of
course be quite absurd. So would the further suggestion (also
necessary, under our substantive-due-process precedents) that a
world in which DOMA exists is one bereft of “ ‘ordered
liberty.’ ” Id., at 721 (quoting Palko v. Connecticut, 302
U. S. 319, 325 (1937) ).

															     Some might conclude
that this loaf could have used a while longer in the oven. But that
would be wrong; it is already overcooked. The most expert care in
preparation cannot redeem a bad recipe. The sum of all the Court’s
nonspecific hand-waving is that this law is invalid (maybe on
equal-protection grounds, maybe on substantive-due-process grounds,
and perhaps with some amorphous federalism component playing a
role) because it is motivated by a “ ‘bare . . .
desire to harm’ ” couples in same-sex marriages. Ante, at 20.
It is this proposition with which I will therefore engage.

															B

															     As I have observed
before, the Constitution does not forbid the government to enforce
traditional moral and sexual norms. See Lawrence v. Texas, 539
U. S. 558, 599 (2003) (Scalia, J., dissenting). I will not
swell the U. S. Reports with restatements of that point. It is
enough to say that the Constitution neither requires nor forbids
our society to approve of same-sex marriage, much as it 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 (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 20. Bear in
mind that the object of this condemnation is not the legislature of
some once-Confederate Southern state (familiar objects of the
Court’s scorn, see, e.g., Edwards v. Aguillard, 482 U. S. 578
(1987) ), but our respected coordinate branches, the 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 21. I imagine
that this is because it is harder to maintain the illusion of the
Act’s supporters as unhinged members of a wild-eyed lynch mob when
one first describes their views as they see them.

															     To choose just one of
these defenders’ arguments, DOMA avoids difficult choice-of-law
issues that will now arise absent a uniform federal definition of
marriage. See, e.g., Baude, Beyond DOMA: Choice of State Law in
Fed- eral Statutes, 64 Stan. L. Rev. 1371 (2012). Imagine a
pair of women who marry in Albany and then move to 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, 920 N. E. 2d 328 (2009). DOMA avoided all of
this uncertainty by speci- fying which marriages would be
recognized for federal purposes. That is a classic purpose for a
definitional provision.

															     Further, DOMA preserves
the intended effects of prior legislation against then-unforeseen
changes in circumstance. When Congress provided (for example) that
a special estate-tax exemption would exist for spouses, this
exemption reached only opposite-sex spouses—those being the only
sort that were recognized in any State at the time of DOMA’s
passage. When it became clear that changes in state law might one
day alter that balance, DOMA’s 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,
124Stat. 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 25) “to disparage and to
injure” same-sex couples. It says that the motivation for DOMA was
to “demean,” ibid.; to “impose inequality,” ante, at 22; to “impose
. . . a stigma,” ante, at 21; to deny people “equal
dignity,” ibid.; to brand gay people as “unworthy,” ante, at 23;
and to “humiliat[e]” their children, ibid. (emphasis added).

															     I am sure these
accusations are quite untrue. To be sure (as the majority points
out), the legislation is called the Defense of Marriage Act. But to
defend traditional marriage is not to condemn, demean, or humiliate
those who would prefer other arrangements, any more than to defend
the Constitution of the United States is to 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-handed invalidation of a
presumptively valid statute is to act (the majority is sure) with
the purpose to “dis- parage,” ”injure,” “degrade,” ”demean,” and
“humiliate” our fellow human beings, our fellow citizens, who are
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
26, 25. I have heard such “bald, unreasoned disclaimer[s]” before.
Lawrence, 539 U. S., at 604. 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. Now we are told that DOMA is
invalid because it “demeans the couple, whose moral and sexual
choices the Constitution protects,” ante, at 23—with an
accompanying citation of Lawrence. It takes real cheek for today’s
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,
p. 2–4 (dissenting opinion), that lower federal courts and
state courts can distinguish today’s case when the issue before
them is state denial of marital status to same-sex couples—or even
that this Court could theoretically do so. Lord, an opinion with
such scatter-shot rationales as this one (federalism noises among
them) can be distinguished in many ways. And deserves to be. State
and lower federal courts should take the Court at its word and
distinguish away.

															     In my opinion, however,
the view that this Court will take of state prohibition of same-sex
marriage is indicated beyond mistaking by today’s opinion. As I
have said, the real rationale of today’s opinion, whatever
disappearing trail of its legalistic argle-bargle one chooses to
follow, is that DOMA is motivated by “ ‘bare . . .
desire to harm’ ” couples in same-sex marriages. Supra, at 18.
How easy it is, indeed how inevitable, to reach the same conclusion
with regard to state laws denying same-sex couples marital status.
Consider how easy (inevitable) it is to make the following
substitutions in a passage from today’s opinion ante, at 22:

															“DOMA’s This state law’s principal effect
is to identify a subset of state-sanctioned marriages constitution-
ally protected sexual relationships, see Lawrence, and make them
unequal. The principal purpose is to impose inequality, not for
other reasons like govern- mental efficiency. Responsibilities, as
well as rights, enhance the dignity and integrity of the person.
And DOMA this state law contrives to deprive some couples married
under the laws of their State enjoying constitutionally protected
sexual relationships, but not other couples, of both rights and
responsibilities.”

															Or try this passage, from ante, at 22–23:

															“[DOMA] This state law tells those
couples, and all the world, that their otherwise valid marriages
relationships are unworthy of federal state recognition. This
places same-sex couples in an unstable position of being in a
second-tier marriage relationship. The differentiation demeans the
couple, whose moral and sexual choices the Constitution protects,
see Lawrence, . . . .”

															Or this, from ante, at 23—which does not even
require alteration, except as to the invented number:

															“And it humiliates tens of thousands of
children now being raised by same-sex couples. The law in question
makes it even more difficult for the children to understand the
integrity and closeness of their own family and its concord with
other families in their commu- nity and in their daily lives.”

															Similarly transposable passages—deliberately
transpos- able, I think—abound. In sum, that Court which finds it
so horrific that Congress irrationally and hatefully robbed
same-sex couples of the “personhood and dignity” which state
legislatures conferred upon them, will of a certitude be similarly
appalled by state legislatures’ irrational and hateful failure to
acknowledge that “personhood and dig- nity” in the first place.
Ante, at 26. As far as this Court is concerned, no one should be
fooled; it is just a matter of listening and waiting for the other
shoe.

															     By formally declaring
anyone opposed to same-sex marriage an enemy of human decency, the
majority arms well every challenger to a state law restricting
marriage to its traditional definition. Henceforth those
challengers will lead with this Court’s declaration that there is
“no legitimate purpose” served by such a law, and will claim that
the traditional definition has “the purpose and effect to disparage
and to injure” the “personhood and dignity” of same-sex couples,
see ante, at 25, 26. The majority’s limiting assurance will be
meaningless in the face of 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 and lesbian couples to
obtain a civil marriage license”) (approved by a popular vote, 52%
to 48%, on November 6, 2012). [ 7 ] Even in a sin- gle State, the question has come out
differently on 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 dis-
agreement over something so fundamental as marriage can still be
politically legitimate would have been a fit task for what in
earlier times was called the judicial 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. Notes 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 legislationwas 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 12. But
the rebuke is tongue-in-cheek, for the majority gladly gives the
President what he wants. Contrary to all precedent, it decides this
case (and even decides it the way the President wishes) despite his
abandonment of the defense and the consequent absence of a case or
controversy. 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 not injured when its statute is held
unconstitutional despite Presidential defense. I do not understand
that line. The injury to Congress is the same whether the President
has defended the statute or not. And if the injury is threatened,
why should Congress not be able to participate in the suit from the
beginning, just as the President can? And if having a statute
declared unconstitutional (and therefore inoperative) by a court is
an injury, why is it not an injury when a statute is declared
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 the inoperativeness that constitutes the injury—the
“impairment of [the legislative] function,” as Justice Alito puts
it, post, at 4—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, , 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, (“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 ,” Moreno, 413 U. S., at
533. 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 ElectionTabulations (Question
1). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 12–307

															_________________

															UNITED STATES, PETITIONER v. EDITH SCHLAIN
WINDSOR, in her capacity as executor of the ESTATE OF THEA CLARA
SPYER, et al.

															on writ of certiorari to the united states
court of appeals for the second circuit

															[June 26, 2013]

															     Justice Alito, with
whom Justice Thomas joins as to Parts II and III, dissenting.

															     Our Nation is engaged
in a heated debate about same-sex marriage. That debate is, at
bottom, about the nature of the institution of marriage. Respondent
Edith Windsor, supported by the United States, asks this Court to
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), 110Stat. 2419, which defines the
meaning of marriage under federal statutes that either confer upon
married persons cer- tain federal benefits or impose upon them
certain federal obligations.

															I

															     I turn first to the
question of standing. In my view, the

															United States clearly is not a proper
petitioner in this case. The United States does not ask us to
overturn the judgment of the court below or to alter that judgment
in any way. Quite to the contrary, the United States argues
emphatically in favor of the correctness of that judgment. We have
never before reviewed a decision at the sole behest of a party that
took such a position, and to do so would be to render an advisory
opinion, in violation of Article III’s dictates. For the reasons
given in Justice Scalia’s dissent, I do not find the Court’s
arguments to the contrary to be persuasive.

															     Whether the
Bipartisan Legal Advisory Group of the House of Representatives
(BLAG) has standing to petition is a much more difficult question.
It is also a signifi- cantly closer question than whether the
intervenors in Hol- lingsworth v. Perry, ante,
p. ___ —which the Court also decides today—have standing
to appeal. It is remarkable that the Court has simultaneously
decided that the United States, which “receive[d] all that [it]
ha[d] sought” below, Deposit Guaranty Nat. Bank v. Roper, 445
U. S. 326, 333 (1980) , is a proper petitioner in this case
but that the intervenors in Hollingsworth, who represent the party
that lost in the lower court, are not. In my view, both the
Hollingsworth intervenors and BLAG have standing. [ 1 ]

															     A party invoking the
Court’s authority has a sufficient stake to permit it to appeal
when it has “ ‘suffered an injury in fact’ that is caused by
‘the conduct complained of’ and that ‘will be redressed by a
favorable decision.’ ” Camreta v. Greene, 563 U. S. ___,
___ (2011) (slip op., at 5) (quoting Lujan v. Defenders of
Wildlife, 504 U. S. 555 –561 (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 (1983) , the Court held that the two Houses of
Congress were “proper parties” to file a petition in defense of the
constitutionality of the one-house veto statute, id., at 930,
n. 5 (internal quota- tion marks omitted). Accordingly, the
Court granted and decided petitions by both the Senate and the
House, in addition to the Executive’s petition. Id., at 919,
n. *. That the two Houses had standing to petition is not
surprising: The Court of Appeals’ decision in Chadha, by holding
the one-house veto to be unconstitutional, had limited Congress’
power to legislate. In discussing 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 is
inapplicable or unconstitutional.” Id., at 940.

															     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 (1939) , bolsters this
conclusion. In Coleman, we held that a group of state senators had
standing to challenge a lower court decision approving the
procedures used to ratify an amendment to the Federal Constitution.
We reasoned that the senators’ votes—which would otherwise have
carried the day—were nullified by that action. See id., at 438
(“Here, the plaintiffs include twenty senators, whose votes against
ratification have been overridden and 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 ef- fectiveness of their votes”); id., at 446 (“[W]e find no
departure from principle in recognizing in the instant case that at
least the twenty senators whose votes, if their contention were
sustained, would have been sufficient to defeat the resolution
ratifying the proposed constitutional amendment, have an interest
in the controversy which, treated by the state court as a basis for
entertaining and 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 (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. Raines is inapposite for two reasons. First, Raines dealt
with individual Members of Congress and specifically pointed to the
individual Members’ lack of institutional endorsement as a sign of
their standing problem: “We attach some importance to the fact that
appellees have not been authorized to represent their respective
Houses of Congress in this action, and indeed both Houses actively
oppose their suit.” Id., at 829; see also ibid., n. 10 (citing
cases to the effect that “members of collegial bodies do not have
standing to perfect an appeal the body itself has declined to take”
(internal quotation marks omitted)).

															     Second, the Members in
Raines—unlike the state 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.
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. See also 2
U. S. C. §288h(7) (Senate Legal Counsel shall defend the
constitutionality of Acts of Congress when placed in issue). [ 3 ] Accordingly, in the narrow
category of cases in which a court strikes down an Act of Congress
and the Executive declines to defend the Act, Congress both has
standing to defend the undefended statute and is a proper party to
do so.

															II

															     Windsor and the
United States argue that §3 of DOMA violates the equal protection
principles that the Court has found in the Fifth Amendment’s Due
Process Clause. See Brief for Respondent Windsor (merits) 17–62;
Brief for United States (merits) 16–54; cf. Bolling v. Sharpe, 347
U. S. 497 (1954) . The Court rests its holding on related
arguments. See ante, at 24–25.

															     Same-sex marriage
presents a highly emotional and important question of public
policy—but not a difficult ques- tion of constitutional law. The
Constitution does not

															guarantee the right to enter into a same-sex
marriage. Indeed, no provision of the Constitution speaks to the
issue.

															     The Court has sometimes
found the Due Process Clauses to have a substantive component that
guarantees liber- ties beyond the absence of physical restraint.
And the Court’s holding that “DOMA is unconstitutional as a dep-
rivation of the liberty of the person protected by the Fifth
Amendment of the Constitution,” ante, at 25, 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 lib- erties which are, objectively, ‘deeply rooted in this
Nation’s history and tradition,’ ” Washington v. Glucksberg,
521 U. S. 702 –721 (1997); Snyder v. Massachusetts, 291
U. S. 97, 105 (1934) (referring to fundamental rights as those
that are so “rooted in the traditions and conscience of our people
as to be ranked as fundamental”), as well as “ ‘implicit in
the concept of ordered liberty,’ such that ‘neither liberty nor
justice would exist if they were sacrificed.’ ” Glucksberg,
supra, at 721 (quoting Palko v. Connecticut, 302 U. S. 319
–326 (1937)).

															     It is beyond dispute
that the right to same-sex marriage is not deeply rooted in this
Nation’s history and tradition. In this country, no State permitted
same-sex marriage until the Massachusetts Supreme Judicial Court
held in 2003 that limiting marriage to opposite-sex couples
violated the State Constitution. See Goodridge v. Department of
Public Health, 440 Mass. 309, 798 N. E. 2d 941. Nor is
the right to same-sex marriage deeply rooted in the traditions of
other nations. No country allowed same-sex couples to marry until
the Netherlands did so in 2000. [ 4 ]

															     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 understand-
ing of marriage—for example, the gradual ascendance of the idea
that romantic love is a prerequisite to marriage—have had
far-reaching consequences. But the process by which such
consequences come about is complex, involving the interaction of
numerous factors, and tends to occur over an extended period of
time.

															     We can expect something
similar to take place if same-sex marriage becomes widely accepted.
The long-term consequences of this change are not now known and are
unlikely to be ascertainable for some time to come. [ 5 ] There are those who think that allowing
same-sex marriage will seriously undermine the institution of
marriage. See, e.g., S. Girgis, R. Anderson, & R. George, What
is Marriage? Man and Woman: A Defense 53–58 (2012); Finnis,
Marriage: A Basic and Exigent Good, 91 The Monist 388, 398

															(2008). [ 6 ] Others think 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
Amer- ica 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 25—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 frame- work, upon which Windsor and the United
States rely, is a judicial construct that provides a useful
mechanism for analyzing a certain universe of equal protection
cases. But that framework is ill suited for use in 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 (1971) (quoting F. S. Royter Guano Co.
v. Virginia, 253 U. S. 412, 415 (1920) ). The modern tiers of
scrutiny—on which Windsor and the United States rely so heavily—are
a heuristic to help judges determine when classifications have that
“fair and substantial relation to the object of the legislation.”
Reed, supra, at 76.

															     So, for example, those
classifications subject to strict scrutiny—i.e., classifications
that must be “narrowly tailored” to achieve a “compelling”
government interest, Parents Involved in Community Schools v.
Seattle School Dist. No. 1, 551 U. S. 701, 720 (2007)
(internal quotation marks omitted)—are those that are “so seldom
relevant to the achievement of any legitimate state interest that
laws grounded in such considerations are deemed to reflect
prejudice and antipathy.” Cleburne v. Cleburne Living Center, Inc.,
473 U. S. 432, 440 (1985) ; cf. id., at 452–453 (Stevens, J.,
concurring) (“It would be utterly irrational to limit the franchise
on the basis of height or weight; it is equally invalid to limit it
on the basis of skin color. None of these attributes has any
bearing at all on the citizen’s willingness or ability to exercise
that civil right”).

															     In contrast, those
characteristics subject to so-called intermediate scrutiny—i.e.,
those classifications that must be “ ‘substantially
related’ ” to the achievement of “im- portant governmental
objective[s],” United States v. Virginia, 518 U. S. 515, 524
(1996) ; id., at 567 (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. For example, the
Court has held that statutory rape laws that criminalize sexual
intercourse with a woman under the age of 18 years, but place no
similar liability on partners of underage men, are grounded in the
very real distinction that “young men and young women are not
similarly situated with respect to the problems and the risks of
sexual intercourse.” Michael M. v. Superior Court, Sonoma Cty., 450
U. S. 464, 471 (1981) (plurality opnion). The plurality
reasoned that “[o]nly women may become pregnant, and they suffer
disproportionately the profound physical, emotional, and
psychological consequences of sexual activity.” Ibid. In other
contexts, however, the Court has found that classifications based
on gender are “arbitrary,” Reed, supra, at 76, and based on
“outmoded notions of the relative capabilities of men and women,”
Cleburne, supra, at 441, 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.

															     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. 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 (1996) . As a
result, in rational-basis cases, where the court does not view the
classification at issue as “inher- ently suspect,” Adarand
Constructors, Inc. v. Peña, 515 U. S. 200, 218 (1995)
(internal quotation marks omitted), “the courts have been very
reluctant, as they should be in our federal system and with our
respect for the separation of powers, to closely scrutinize
legislative choices as to whether, how, and to what extent those
interests should be pursued.” Cleburne, supra, at 441–442.

															     In asking the Court to
determine that §3 of DOMA is subject to and violates heightened
scrutiny, Windsor and the United States thus ask us to rule that
the presence of two members of the opposite sex is as rationally
related to marriage as white skin is to voting or a Y-chromosome is
to the ability to administer an estate. That is a striking request
and one that unelected judges should pause before granting.
Acceptance of the argument would cast all those who cling to
traditional beliefs about the nature of 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 “tradi- tional” or “conjugal” view,
sees marriage as an intrinsically opposite-sex institution. BLAG
notes that virtually every culture, including many not influenced
by the Abrahamic religions, has limited marriage to people of the
opposite sex. Brief for Respondent BLAG (merits) 2 (citing
Hernandez v. Robles, 7 N. Y. 3d 338, 361, 855 N. E. 2d 1,
8 (2006) (“Until a few decades ago, it was an accepted truth for
almost everyone who ever lived, in any society in which marriage
existed, that there could be marriages only between participants of
different sex”)). And BLAG 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
consti- tutional order assigns the resolution of questions of this
nature to the people, I would not presume to en- shrine either
vision of marriage in our constitutional jurisprudence.

															     Legislatures, however,
have little choice but to decide between the two views. We have
long made clear that neither the political branches of the Federal
Government nor state governments are required to be neutral between
competing visions of the good, provided that the vision of the good
that they adopt is not countermanded by the Constitution. See,
e.g., Rust v. Sullivan, 500 U. S. 173, 192 (1991) (“[T]he
government ‘may make a value judgment favoring childbirth over
abortion’ ” (quoting Maher v. Rue, 432 U. S. 464, 474
(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 21–22 (“As
the title and dynamics of the bill indicate, its purpose is to
discourage enactment of state same-sex marriage laws and to
restrict the freedom and choice of couples married under those laws
if they are enacted. The congressional goal was ‘to put a thumb on
the scales and influence a state’s decision as to how to shape its
own marriage laws’ ” (quoting Massachusetts v. United States
Dept. of Health and Human Servs., 682 F. 3d 1, 12–13 (CA1
2012))). Indeed, the Court’s ultimate conclusion is that DOMA falls
afoul of the Fifth Amendment because it “singles out a class of
persons deemed by a State entitled to recognition and protection to
enhance their own liberty” and “imposes a disability on the class
by refusing to acknowledge a status the State finds to be dignified
and proper.” Ante, at 25 (emphasis added).

															     To the extent that the
Court takes the position that the question of same-sex marriage
should be resolved primar- ily at the state level, I wholeheartedly
agree. I hope that the Court will ultimately permit the people of
each State to decide this question for themselves. Unless the Court
is willing to allow this to occur, the whiffs of federalism in the
today’s opinion of the Court will soon be scattered to the
wind.

															     In any event, §3 of
DOMA, in my view, does not 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 cer- tain special benefits and
upon whom federal law imposes certain special burdens. In these
provisions, Congress used marital status as a way of defining this
class—in part, I assume, because it viewed marriage as a valua- ble
institution to be fostered and in part because it viewed married
couples as comprising a unique type of economic unit that merits
special regulatory treatment. Assuming that Congress has the power
under the Constitution to enact the laws affected by §3, Congress
has the power to define the category of persons to whom those laws
apply.

															*  *  *

															     For these reasons, I
would hold that §3 of DOMA does not violate the Fifth Amendment. I
respectfully dissent. Notes 1 Our precedents make clear
that, in order to support our jurisdic-tion, BLAG must demonstrate
that it had Article III standing in its own right, quite apart from
its status as an intervenor. See Diamond v. Charles, (“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, (“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 (“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, , 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 doc-ument the effects of
social changes—like the sharp rise in divorcerates 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
mes-sage that would undermine the social boundaries relating to
mar-riage and family relations. The confusion of social roles
linked with marriage and parenting would be tremendous, and the
message of ‘anything goes’ in the way of sexual behavior,
procreation, and parenthood would wreak its greatest havoc among
groups of vulnerable individuals who most need the encouragement of
bright line lawsand clear social mores concerning procreative
responsibility”) and Gal-lagher, (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
decisionmaking was highlighted by the trial in Hollingsworth v.
Perry, ante, p. ___. 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 (ND Cal. 2010)
(finding of fact no. 27) (“Marriage between a man and a woman was
traditionally organized based on presumptions of division of labor
along gender lines. Men were seen as suited for certain types of
work and women for others. Women were seen as suited to raise
children and men were seen as suited to provide for the family”),
what marriage is, id., at 961 (finding of fact no. 34) (“Marriage
is the state recognition and approval of a couple’s choice to live
with each other, to remain committed to one another and to form a
household based on their own feelings about one another and to join
in an economic partnership and support one 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.