Wednesday, June 26, 2013

Marriage decisions

When the oral arguments were being heard three months ago on Defense of Marriage Act and California's Prop 8 (a ballot initiative which defined marriage in California as solely between a man and a woman), I made the following predictions:

(M)y guess is DOMA will be overturned but Prop 8 will be allowed to stand. The rationale behind this may be similar to the spirit in which Obamacare was upheld. That is, it should be left to our democratic processes to best determine our laws of the land.....provided said laws meet the Constitutional check of course.

DOMA was indeed struck down, which in and of itself was no surprise. However, I didn't expect it to be one of those razor thin 5-4 majorities.

The vote in the case striking down the federal Defense of Marriage Act was 5 to 4, and Justice Kennedy was joined by the four members of the court’s liberal wing. The ruling will immediately extend many benefits to couples married in the states that allow such unions, and it will allow the Obama administration to broaden other benefits through executive actions.
I am rather perplexed that the so-called "conservative" wing of the court would vote to supersede states rights by upholding DOMA. For what it's worth, you can read excerpts of Justice Antonin Scalia's scathing dissent here

Since the DOMA decision was announced first, I glanced over some of the majority opinion. Given the rationale handed down, I hopped on Twitter with the optimistic prediction that California's Prop 8, which was voted into law by the state's citizens in November 2008, would be allowed to stand.

Oh, how wrong I was.....sort of.

The case concerning California’s ban on same-sex marriage, enacted in a ballot initiative known as Proposition 8, was decided on technical grounds, with the majority saying that it was not properly before the court. Because officials in California had declined to appeal a trial court’s decision against them, and because the proponents of the ban were not entitled to step into the state’s shoes to appeal the decision, the court said, it was powerless to issue a decision. That left in place a trial court victory for two same-sex couples who had sought to marry.

The vote in the California case was also 5 to 4, but with a different and very unusual alignment of justices. Chief Justice John G. Roberts Jr. wrote the majority opinion, and he was joined by Justice Scalia and Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan. The four dissenters — Justice Kennedy and Justices Clarence Thomas, Samuel A. Alito Jr. and Sonia Sotomayor — said they would have decided whether Proposition 8 was constitutional. But they did not say how they would have voted.

A couple of thoughts regarding this ruling.
  • Like with the Obamacare decision last year, CJ Roberts seemingly was the deciding vote. With Obamacare, he pulled what someone dubbed a "constitutional finesse" by allowing the individual mandate to stand. See, the government could not legally compel commerce (i.e. require someone to purchase health insurance). However, if the I.M. were a "tax", which government has the ability to levy in certain circumstances, the Obamacare law could stand. Many interpreted Roberts' mindset as a subtle message to the people, saying that it's your job to elect a new President and new Congress if you want the law overturned. I couldn't help but think that perhaps Roberts was also delivering some sort of subtle message with the Prop 8 ruling. That message would be to have an actual government official stand up for your referendum in question and we'll not only hear the case but render a decision accordingly.  

  • The ruling on Prop 8 essentially renders meaningless the will of the people, who voted said proposition into law. While two different Federal courts declared the law unconstitutional, both also decided on a stay (i.e. no same-sex marriages would be granted in accordance with Prop 8) until the Supreme Court handed down its ruling. In the 4-1/2 years since the ballot measure passed, polling has shown that Californians have evolved on the same-sex marriage issue to the point where the majority of the state's citizens support such a union. With that in mind, the wiser course would have been for said citizens to have Prop 8 repealed via the legislative process as opposed to judicial fiat. You may believe that Prop 8 is wrong, but it should also bother you that there seemed to be a compromise in the separation of powers. 

At the end of the day, there are no additional states (other than California, once the SCOTUS opinion is finalized) that have to recognize gay marriage. And for the immediate future, the issue will indeed be left for the states to decide. Even with the overturning of DOMA, states still don't have to recognize same-sex marriages from other states.

As for the long-term future? Both sides are gearing up for the next phase of this battle.


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