Diane Robertson
“Same-sex marriage presents a highly emotional and important question of public policy—but not a difficult question of constitutional law. The Constitution does not guarantee the right to enter into a same-sex marriage. Indeed, no provision of the Constitution speaks to the issue. . . .
“What Windsor and the United States seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. Faced with such a request, judges have cause for both caution and humility. The family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. . . .
“The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come.” ~ Justice Samuel Alito
The Supreme Court’s ruling for both DOMA and Proposition 8 were released by 10:26 am EDT time on Wednesday. DOMA has been struck down 5 to 4. Justice Anthony Kennedy joined the four liberal justices in declaring DOMA unconstitutional. Justices Scalia, Alito, Thomas, and Chief Justice Roberts dissented.
On a 5 to 4 decision with Chief Justice Roberts joined by Scalia, Ginsburg, Breyer, and Kagan, the Supreme Court declared that those defending Proposition 8 did not have standing before the federal courts. Proposition 8 is now dismissed from the court. The ninth circuit court decision in which Proposition 8 was declared unconstitutional has no jurisdiction because the Supreme Court decided that the people defending Proposition 8 did not have standing in that court. The court has ruled that if a state does not defend its own law, the people do not have the right to defend it in federal court. Justices Kennedy, Thomas, Alito, and Sotomayor dissented.
In the DOMA ruling Justice Kennedy stigmatized all dissenting voices giving gays and lesbians extra protection. He said:
“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to 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, the federal statute is in violation of the Fifth Amendment.”
Justice Scalia read part of his dissent during the ruling. He discusses the fact that defending something is not the same as dehumanizing another with a different opinion. Scalia declared:
“In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.”
Here are the pros and cons to today’s ruling:
Pros:
- Gay marriage is not legalized for every state.
- The State’s right to decide marriage is reaffirmed.
Cons:
- The DOMA ruling used heightened scrutiny setting a precedent for all future gay-rights litigation. This basically gives gays and lesbian special status over everyone else. The ruling essentially considers the LGBTQ community a discriminated group that needs extra protections.
- By not affirming the people of California’s right to make laws through the initiative process, all ballot initiatives that the state government doesn’t like or doesn’t want to defend can be reversed easily by the state government. This takes a lot of power away from the people.
The court’s decision on proposition 8 puts marriage in California back into the hands of the state legislature and the state courts. The legal defense team that defended Prop 8 tells us that the Prop Case is far from being decided. Read their statement here. It does, however, seems unlikely that California courts will redo what proposition 8 undid in 2008 and California will become the 13th state to legalize gay marriage.
The most important precedent coming from today’s ruling is how the majority of the judges viewed DOMA. They have simply declared that anyone seeking to protect marriage as an institution between one man and one woman does so in order to “disparage, injure, and degrade”. While affirming the state’s right to make marriage laws, the Supreme Court has opened the way for courts to legalize gay marriage in every state through the use of heightened scrutiny.