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.