Wednesday, June 26, 2013

A Few Words On The DOMA And Prop 8 Supreme Court Decisions

Today the Supreme Court issued two rulings on gay marriage with interesting implications.

In the first one, by a 5-4 ruling the Court struck down certain provisions of the Defense of Marriage Act (DOMA)signed into law by President Clinton.

In Windsor v. United States, it declared provisions of the law invalid that prohibit homosexual couples from sharing government health care benefits, filing taxes jointly, and similar items under the Equal Protection clause of the Constitution.

Justice Kennedy was the swing vote.

You'll note two things..first, that this simple and essentially fair fix could have been done in Congress long ago with reference to civil unions without even touching the definition of marriage, as it essentially amends the law without rescinding it.

And second, that is does not make gay marriage 'legal' except in those states that want to make it so. Although it does signal (but not implicitly state) that such unions should be recognized nationwide.What the Court essentially did was to punt, just as they did in the other ruling on this subject they made, which we'll discuss shortly.

DOMA was always a queer piece of law (no pun intended). Like Don't Ask Don't Tell, it was a compromise based on the assurances of gay activists and their congressional supporters that they would never seek to overturn it judicially - which of course is exactly what they did afterwards. And in fact it was mostly same sex marriage advocates in congress who mostly kept DOMA from being amended, precisely because they were after the bigger goal of redefining marriage itself.

To prove this to yourself, ask any gay person of your acquaintance who rabidly favors legalized same sex marriage on the grounds of 'equal rights' if they would be satisfied with law that establishes every one of those rights they claim they want  but legally refers to civil unions instead of marriages. You'll invariably get an indignant 'no!' in almost all cases.

This was never about equal rights.It was always about redefining marriage. And once you do that, literally anything can become a marriage.

The second Supreme Court decision rendered today concerned California's Proposition 8, voted for by almost a two to one majority in that state to change California's constitution to define marriage as between one man and one woman.

At the time, California had legalized civil unions which even the state's own Supreme Court justices admitted gave same sex couples in a civil union the exact same rights as a heterosexual married couple. But a ruling by openly gay Judge Vernon Walker that the new law was unconstitutional sent Proposition 8 on the road to the Supreme Court.

What the SCOTUS did was simply to emphasize their earlier decision on DOMA by refusing to hear the case based on - wait for it - a lack of standing. Here we have the votes of an entire state dismissed, as the case goes back to the lower court whom will likewise do the same. So California will have gay marriage regardless of what the residents want, and Governor Jerry Brown (who as attorney general made a unilateral decision to ignore his oath of office and not defend the new law in court) has ordered the state to resume issuing licenses for same sex marriages within 30 days.

The rationale for this is particularly revealing. Here's Chief Justice Roberts in his majority opinion explaining the decision to dismiss the case:

For there to be such a case or controversy, it is not enough that the party invoking the power of the court have a keen interest in the issue. That party must also have "standing," which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit.

Once Proposition 8, which limited marriage in California to heterosexual couples, was approved by the voters, the measure became "a duly enacted constitutional amendment or statute." Petitioners have no role—special or otherwise—in the enforcement of Proposition 8. They therefore have no "personal stake" in defending its enforcement that is distinguishable from the general interest of every citizen of California.

No standing? What exactly are the people of California supposed to do if their own elected officials pick and choose which laws they like and which ones they will enforce and defend in court? Is that what we've come to?

In his dissent, Justice Kennedy at least tried to be honest about the matter, arguing that the SCOTUS should have made a ruling in this case:

The Court today unsettles its longtime understanding of the basis for jurisdiction in representative-party litigation, leaving the law unclear and the District Court's judgment, and its accompanying statewide injunction, effectively immune from appellate review.

Kennedy also smacked state officials for opposing Prop 8 in the manner they did as another reason the SCOTUS should have taken this on:

In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century.

Eh, but not in California so much any more. Or a lot of other places either, where same sex marriage was pushed through without bothering to actually consult the voters. So in today's decisions, the SCOTUS is simply saying to the activists on both sides that if you can get a state to allow same sex marriage or to disallow it by any means necessary, so be it.

Right now, same sex marriage is legal in 15 states. The only one where voters actually had a say in the matter and voted for it are Maine, Maryland, and Washington. In most of the others, including California, the voters feelings on the matter were studiously ignored.

That's not how a democratic republic operates, or at least that used to be the case.


Geoffrey Britain said...

In DOMA; SCOTUS has ruled that Congress may NOT deny federal benefits to married gay couples in states that have already legalized gay marriage. Nor can Congress limit a state’s intent to give gay marriage the same legal standing as heterosexual marriage.

I’m not sure that I have a basis in logic to disagree with this, at least as a states rights issue. Especially if a state has legalized gay marriage through a vote of the people.

Now that DOMA has been struck down, the question of whether a state that has NOT legalized gay marriage MUST recognize same-sex marriages from a state that HAS legalized gay marriage arises anew. I can’t recall this issue having been directly addressed if, as has now happened, DOMA is struck down. Does Texas now HAVE to recognize Massachusetts’ legalized gay marriages? What happens when a married same-sex couple moves to a non-SSM state?

What about the military when it transfers a gay couple who were legally married in Mass. to Texas?

Then there’s the issue of plural marriage, which of course includes polygamy.

Here’s Justice Kennedy’s reasoning in writing the majority opinion that strikes down DOMA:

“…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 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.” (my emphasis)

Just substitute ‘plural marriage groups’ or ‘polygamous arrangements’ for the emboldened “same-sex couples” wording. Leave every other word intact and show me how the same reasoning does not apply in arguing against the two-person limitation upon ‘marriage’. By that reasoning, to ‘outlaw’ plural and polygamous marriages is inescapably unconstitutional discrimination.

In Prop. 8, the SCOTUS has ruled that an activist judge and liberal/leftist state officials or the same configuration at the federal level can deny the people standing for redress of grievances, with the people effectively having no right of appeal. This way lies tyranny.

None of this is surprising, just more examples of the left’s machinations; “Their goal is to dismantle capitalism, one brick at a time, and for them to become the new nomenklatura in a social democratic state.” FredHJr

I would broaden Fred’s comment, their goal is not merely the dismantling of capitalism but the dismantling of the entire social foundations of American society.

Anonymous said...

Hi Rob,

I would remind you and everyone else, that simply because a majority of people like a law or pass a referendum does not make it Constitutional.The majority of people may believe XYZ, but that does not mean it does not disenfranchise a minority of persons, hence the unconstitutionality of the law. The job of SCOTUS is to review the laws passed when appropriate and render the judgement on their Constitutionality. Rule by mob mentality is not what this democracy is all about.

Rob said...

Hello Elise,
I had a feeling you'd weigh in here ; )

Unfortunately like many opinions about this matter it's a thoroughly false argument.

There is no right to same sex marriage in the U.S. Constitution. If the people of California voted to, say, evict all Jews from the state the Constitution would come into play and the law would be DOA.

The US Constitution supersedes state ones.

OTOH, if they voted to mandate voter ID's, that would be fine and their right under the Constitution as a sovereign state.That's why the SCOTUS punted.

So we're not talking 'mob rule' here, but representative democracy that was suppressed by one openly gay and activist judge who should have recused himself and several Left wing state officials trolling for votes and campaign $$ who were derelict in their sworn duty towards the people whom elected them.


Anonymous said...

Hi Rob,

Suffice it to say we are going to have to agree to disagree on this one. On this issue I of course agree with Constitutional authority, former solicitor general and conservative Ted Olson.

The issue as I see it is that once the state gets to define what is marriage along with tax incentives to go along with that, then it becomes a Constitutional issue. It's disallowing tax benefit to a particular group of people. It's why the DOMA case actually came about in the first place. If governments (State Action) got out of the marriage business there would be no equal protection issue.

Now as far as California. That of course is the ninth circuit and they tend to do what they want to regardless of the Constitution anyway. I would say that all politics is about money and who to cajole into giving you big bucks. That is afterall what Lobbying is all about too. However, again, if the State didn't stick itself into the middle of the marriage debate (taxes and other marital benefits given by a State) in the first place, none of this would be an issue.

Again though, "mob rule" is synonymous with majority rule whether its constitutional or not. To also say that a Left-wing or openly gay judge shouldn't have ruled on the law is not fair of you. That is like saying the Jews and anyone else who might be considered pro-Israel on the Supreme Court should have recused themselves before they ruled on the "Jerusalem passport" case.


Rob said...

Hi Elise,
No problem with agreeing to disagree. But if I may interject...

The tax issues involved in the part of DOMA that was rescinded (a decision I agree with, BTW)mostly do not concern state issues but Federal ones.

These could have been fixed with a simple amendment by Congress, but that solution was continuously torpedoed by gay marriage advocates in Congress.

Again, ask any gay person of your acquaintance who rabidly favors legalized same sex marriage on the grounds of 'equal rights' if they would be satisfied with law that establishes every one of those rights they claim they want with same sex marriage but legally refers to them as civil unions instead of marriages.

They'll almost always say no.

Obviously the agenda was quite different than simply 'equal rights'.

States cannot 'get out of the marriage business' because of the Full Faith and Credit doctrine all states honor. It's why your driver's license is good in all fifty states, at least for a certain time period (which differs in each one). The SCOTUS just damaged this concept by failing to rule definitively.

As for Vaughn Walker, he was a public and open homosexual and advocate for gay marriage. A judge with any integrity would have recused himself. As for your example of the "Jerusalem Passport" case, that is not a Constitutional matter of religion or pro-Israel sentiments but a matter of the legislative branch's authority versus the executive, and whether Israel as a sovereign nation is singled out for discriminatory treatment meted out to no other country by the State Department (and yes, it is).

If a majority of people in Maryland like the idea of gay marriage and vote for it, I'm fine with that. Why are you so unwilling to honor the wishes of the majority just because it conflicts with your personal views?

BTW, there are a number of big picture reasons why same sex marriage as opposed to legal civil unions is an incredibly bad idea for society that has nothing to do with religion. (Hah, read your mind !)

Believe it or not, I've been approached three times to debate this subject online and in every case the 'pro' side canceled out.

That in itself says something.


Anonymous said...

Hi Rob,

Actually the reference to the Jerusalem passport case was because some in the opposition to putting Jerusalem, Israel on the passport, actually said that the fact that three of the justices are Jewish would influence their legal decision. Even as it is a power-fight between Congress and the executive branch, personal feelings can and do influence court decisions all the time. For the same reason that so many tried to have Justice Thomas recused from the Obamacare decision since his wife ran a PAC dedicated to it being overthrown.

I generally never have an issue with how the majority of voters vote. It's how we have elections. But when a law is unconstitutional then I have a problem with it whether it was through the legislative process by referendum. Remember the laws forbidding interracial marriages were also passed by legislatures, as are all laws.

I suppose it comes down to the fact that I do not trust the majority of the country to actually always do what is right. I always remember the admonition that everything that Hitler did was legal in Germany. So I have no problem with the right of judicial review by the Supreme Court.

As far as those of us who chicken out in debating you on same-sex marriage. As I wrote, I know how I feel, I know what I believe to be the law. But I do not consider myself expert enough to actually debate in any other style than here on your blog.

As far as the agenda of gay rights activists...they can have any agenda they want. The law will either support them or not. I also cannot define what I believe equal protection to be by what some particular group stands for or doesn't stand for. To me its all and only about the Constitution.

I suppose in many regards I see equal protection or equal rights as farther reaching than the issue of same sex marriage. It is the idea of the "other" in society being sidelined or shunted aside. Read my latest post at my autism blog and you will see what I mean.

Take care,


Rob said...


BTW, I'm surprised that the opposition would want these particular Jews to recuse themselves.

IMO Breyer, Kagen and Ruth Bader Ginsberg would definitely vote against Israel and Jerusalem receiving equal treatment.