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.]
