SCOTUS rules on the DOMA and California Proposition 8 cases
Both the DOMA and Prop 8 decisions ended up favoring gay marriage advocates, but SCOTUS avoided ruling on gay marriage itself at all.
The DOMA decision focused on whether the federal government, by an act of Congress that denied federal benefits to married gay couples even in states that have already legalized gay marriage, can limit a state’s intent to give gay marriage the same legal standing as heterosexual marriage. The answer was “no” because it would be a denial of due process (or perhaps equal protection, or perhaps both; it seems a little unclear to me), and so Section 3 of the Act was struck down. The justices split along the usual ideological lines with the usual swing justice (Kennedy) voting with the majority.
The Defense of Marriage Act was passed by Congress in 1996 (seems like centuries ago, doesn’t it?) and signed into law by none other than President Clinton. Although you may disagree with the outcome of this case, it has the effect of supporting the rights of states (although not explicitly; the case was decided on equal protection grounds). The ruling rested on the idea that:
Because Congress has ventured beyond the usual scope of its powers, DOMA is subject to tighter scrutiny under the Fifth Amendment than it would have gotten otherwise.
Decisions about who is allowed to be legally married within a state and who is not have traditionally been left to each state, unless the state rules violate some basic tenet such as equal protection (for example, laws against miscegenation would do that). This decision’s effect is that, if a state decides that gay marriages within its confines are legal, the feds must go along with that for the purpose of things such as federal tax benefits.
The Proposition 8 case is unusual in that, although the split was also 5-4, it was not along the usual lines: Roberts and Scalia were with the majority (Ginsburg, Breyer, and Kagan) and Kennedy and Sotomayor with the minority (Thomas and Alito). It was a narrow decision that had nothing to do with the merits of the gay marriage or anti-gay marriage arguments; it had to do with whether the proponents of Prop 8 have standing to appeal the California state court’s decision to overrule it. The Court’s answer was “no,” so it could not decide the case on the merits.
Ordinarily, when a state court declares a proposition passed by a statewide election to be unconstitutional (which is what happened in California), the state itself would be mounting the appeal and defending the vote of its own people. But the state of California—in other words, the governor and other state officials—refused to do this, and it was left to private citizens in favor of Proposition 8 to defend it.
Federal courts have authority under the Constitution to answer such questions only if necessary to do so in the course of deciding an actual “case” or “controversy.”…
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*…
We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.
So Judge Walker’s decision—which I wrote about at length here—stands.
I find it very troubling that, if a single judge in a state uses shaky grounds to invalidate a proposition passed by the people of that state, and state officials refuse to appeal because they happen to disagree with the people’s will, the people have no ability to appeal to SCOTUS. Of course, if the proposition came to a vote in California today, perhaps it would not have been passed. But we don’t know that, and it would have been much better if the people had been allowed to decide for themselves.
But they are not being allowed to decide. Recall the history of Proposition 8. It was originally passed in order to counter judicial activism in that state regarding the validity of gay marriage:
By restricting the recognition of marriage to opposite-sex couples, the proposition effectively overturned the California Supreme Court’s ruling of In re Marriage Cases that same-sex couples have a constitutional right to marry. The wording of Proposition 8 was precisely the same as that which had been found in Proposition 22, which had passed in 2000 and, as an ordinary statute, had been invalidated by the State Supreme Court in 2008. California’s State Constitution put Proposition 8 into immediate effect the day after the election. The proposition did not affect domestic partnerships in California, nor same-sex marriages performed before November 5, 2008.
The courts and the people have been fighting about this for a long time in California. At this point, the courts are winning, despite the fact that in the present case the Supreme Court has declined to enter the fray. As Professor William A. Jacobson writes, in this case we see:
The death of the ballot initiative movement as Court gives de facto veto power to government officials who want to lose a case.
Exactly.
[NOTE: *If you are confused as to why the California court’s decision that Proposition 8 is unconstitutional stands although SCOTUS ruled that the Ninth Circuit had no standing to decide the case either, remember that there was an earlier decision by a district court that does stand. That earlier decision was the one by Judge Walker that I wrote about at the time. See this for some further clarification on the different California court cases involved.]
[ADDENDUM: Interesting comments on the Prop 8 case here.]
[ADDENDUM II: Scalia’s dissent on DOMA. Makes sense to me.]
I’d love to hear the argument against polygamy now.
Isn’t polygamy legal under sharia?
Todays decision’s main effect will be to hasten the coming – inevitable – collision between the 1st and 14th amendments.
And that is the elephant in the room.
“Congress shall make no law respecting an establishment of religion …”
But five blind fools in black cloaks conspired to do just that, didn’t they.
So what happens when some fiery evangelical tells preaches on 1 Corinthians 6:9-10?
Or when a Catholic priest refuses to perform a marriage ceremony?
We have sown the wind.
…and we will certainly reap the whirlwind.
There is no reconciliation possible between Judeo-Christian beliefs, and the Court’s decision. None.
Idiots. Abysmal history challenged idiots!
…that second civil war? – It’s coming.
It’s already in progress.
davisbr –
As a fellow member of the neoneocon Supreme Court, I join your opinion in full.
The important thing in the DOMA decision was not so much its ruling that the feds cant define terms in its own statutes for purposes of federal law – though that is questionable enough. The important thing is the landmine subsuming this case under pure bigotry.
That “reasoning” will be extended to the very end. Or as Scalia said, (paraphrasing) “The only thing stopping the Courts in extending it fully will be its own sense of what it can get away with.”
The answer will soon be, if it already isn’t, “Anything.”
davisbr:
Completely agree that religious freedom is what’s at stake here. Scary times indeed. I am finding it increasingly difficult to keep calm and Catholic on, as Elizabeth Scalia and others are advising.
Here’s a pessimistic take from a Catholic legislator:
http://www.patheos.com/blogs/publiccatholic/2013/06/the-doma-ruling-guessing-what-it-means/
And the pace of our rush to ruin quickens.
Some future historian will be pressed to explain why the most prosperous and successful culture which has ever existed was so quick to sacrifice it all on the alter of egalitarianism.
If homosexual unions are normalized, then there is no legitimate defense to discriminate against any other union, irrespective of numbers, kinds, and forms.
That said, when did “enlightened” people reject the principles of evolution? Was it at the same time, and for the same reasons, that they normalized premeditated murder without cause and due process for reason of money, welfare, and convenience?
This post by Bookworm should be required reading every time the Left tries to change sexual/marriage norms:
Read the whole thing; prepare to have your blood run chill.
“the State dominates the nation because it alone represents it” — Hitler
“the State incarnates the Divine Idea upon earth,” – Hegel
“the State is the general substance, whereof individuals are but accidents.” – Hegel
“Everything for the State; nothing outside the State; nothing against the State” – Mussolini
“the State is the superior power, ultimate and beyond appeal, absolutely independent.” – Fichte (Johann Gottlieb Fichte)
There was no power more feared by Thomas Jefferson so much as “the consolidation [i.e., centralization] of our government by the noiseless and therefore unalarming instrumentality of the Supreme Court.”
“Bear in mind that the object of this condemnation [of DOMA as being harmful to a politically unpopular group] 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.” – Justice Scalia
It has been apparent the government of the U. S. has been usurped by the ‘State’ for some time now. How is not quaint that the people, those with an interest, busy themselves petitioning the government through their representatives.
It is over.
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 about the military when it transfers a gay couple who were legally married in Mass. to Texas?
Then as Steve points out, 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 federal government 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 merely add to Fred’s comment that their goal is not merely the dismantling of capitalism but of the entire social foundations of American society.
Here. Brief and to the point, from a comment at Hotair.
…this does not end well.
davisbr,
No, we are not there… yet. Striking down DOMA will not force Christian pastors and priests to perform same sex marriages. Nor their congregations to recognize same sex marriages either.
At some point, a state legislature or activist judge will rule that the state categorization of whom may and may not marry supersedes Church dogma and then, Religious organizations will either be forced to perform same-sex marriages or have to cease performing all marriages. That’s how they’ll attack it.
It’s all part of the ‘one brick at a time’ approach the left is using. Businesses are and will be forced to recognize same sex couples as a step on the road to full societal acceptance. It’s incremental coercion.
And a small correction to maintain perspective; A slim majority of the Supreme Court practices selective enforcement and interpretation of the Constitution and Constitutionality of Law.
As neo warned, reelection of Obama has offered the left the potential opportunity to expand that slim majority, in perpetuity.
Earlier this evening, I left the following comment at Transterrestrial Musings:
I’ve often thought that a big difference between liberals and conservatives is that conservatives are concerned with process, while liberals are concerned with results.
Conservatives believe that there are right ways and wrong ways to do things, and procedures and rules which must be followed. The Constitution must be interpreted in light of the original intent of those who wrote it. If a court decision sometimes goes in an unfavorable way, well, those are the breaks.
Liberals are willing to twist the Constitution into pretzel shapes in order to obtain the result they want. Likewise, they’re not shy about committing vote fraud to win elections. Or, as Marx put it, “the end justifies the means”.
I’m basically a libertarian, and believe in “live and let live”. I don’t hate homosexuals and don’t want to see them repressed or punished.
But it certainly seems today that homosexuals, a small percentage of the population, appear to have an outsized presence in positions of wealth and power. They are not demanding tolerance, but acceptance as normal. I’m not a psychologist, but I’ve read that they tend to be more narcissistic than heterosexuals.
As we know, narcissists in positions of power can be problematic.
Homosexuality and other sexual perversions can be tolerated in societies that are peaceful and prosperous, but in a society that is splintering, disintegrating, and sinking into poverty, I would predict a rather violent backlash.
rickl,
Depends upon whether you’re referring to the narcissism of appearance or the extreme narcissism of egotistical preoccupation with self, Obama being a superb example.
Both gay men and lesbians adopt the male and female roles when in relationship.
Gay men who embrace the feminine role are more narcissistic about appearance than the majority of heterosexual men.
Lesbians are just the opposite, those who embrace the masculine role, reject traditional standards of feminine beauty in themselves and are less narcissistic about appearance than the majority of heterosexual women.
Gay men who embrace the masculine role and lesbians who embrace the feminine role are probably about as narcissistic as heterosexuals.
This is mostly about taking down Christianity. As with the NSA surveillance, the moslems will get a pass.
On the amnesty for illegal aliens front, Rubio said this: “I got involved because I knew that if conservatives didn’t get involved in shaping this legislation, it would not have any border security reforms our nation desperately needs,” Rubio said.
There you go. The rationale for all the Collaborators. “if conservatives didn’t get involved in shaping this legislation . . .” IOW, they’ve given up the fight on issue after issue, and are now just . . . tweaking the Leftist programme.
As a Catholic conservative, I don’t know a single person who opposed “civil unions”. Those that have sincerely wanted to avail themselves of the federal benefits of marriage most assuredly could have proceeded along those lines and arrived at their desired destination. The fact that this is about marriage, or more specifically, dismantling the foundation of the family is more than evident. I have always stated that I don’t want my granddaughter to be asked at school, “Are you going to marry a boy or a girl?” Really, it is that fundamental for me. One of her Uncles is gay and has a partner. So it isn’t as though we don’t have a personal connection to the realities of life. But forcing the issue in the public square? The law of unintended consequences will manifest without a doubt.
Sharon W Says:
June 26th, 2013 at 11:57 pm
Yet another case of government causing problems. If we had something like a flat tax, there would be any such thing as “federal benefits of marriage”.
In my former life as a stockbroker I had plenty of gay clients.
Without divorce, without dependents, they ended up with all the financial assets — tax code be damned.
The last thing they wanted was to be hitched — to anyone in such a manner that divorce would be required to severe the bond.
ALL of their straight acquaintances had lost their wallets to family or divorce.
Gay men disdain gay marriage.
The only faction that plays up ‘gay’ marriage is the lesbian crowd. Where lesbian marriage has been permitted, childless divorce has soon erupted. The partners soon discover the perils of a joint checking account… which totally overwhelms the impact of form 1040.
The normal progression of events soon turns lesbian partnerships into virtually one-income ‘families;’ with the dyke bringing in the bacon. (typically) The submissive then ‘makes house’ — a childless home — and audits soap operas full time.
This dynamic is hard wired into the human brain — deep down at the brain stem. It can’t be thought around/ reasoned with. It just is.
Just to be accurate, it was not a “California court’s decision that Proposition 8 is unconstitutional “, it was the United States District Court for the Northern District of California. That’s a Federal Court.
In my tiny mind, it would be impossible for a California Court to find the California Constitution to be unconstitutional.
Phillip Ngai:
Yes indeed, the US District Court (federal) located in California.