The U.S. Supreme Court today struck down the federal Defense of Marriage Act as a violation of the constitutional provision for equal protection.
It was one of two major marriage decisions. The court dismissed the second case, California’s Proposition 8, deciding that the citizens who appealed the California Supreme Court’s decision to strike down the law protecting traditional marriage did not have “standing.”
The DOMA dispute was triggered by a lesbian whose same-sex partner died and left her an estate. The lesbian sued because she was assessed taxes on her inheritance while the survivor of a married spouse would be exempt.
The opinion said marriage laws long have been determined by states, but DOMA rejected that concept.
President Obama had refused to defend DOMA, which was signed by President Bill Clinton in 1996. The provision simply said that for federal purposes, such as benefits, marriage is limited to a man and a woman.
However, Obama, and his attorney general, Eric Holder, announced they would not defend it as their oaths of office require.
Mathew Staver, chairman of Liberty Counsel, warned that the president’s stance itself is a dangerous precedent.
Striking DOMA, he said, “would set the precedent that the president can pick and choose which laws he wants to enforce and which ones he does not.”
That, he said, would make a president an “autocratic dictator” by default, as he no longer would be bound by his oath of office to enforce all laws. If a president didn’t like the tax code, for example, he could order federal agents not to enforce it.
“Marriage laws may vary from state to state, but they are consistent within each state,” the opinion said. “DOMA rejects this long-established precept.”
The 5-4 ruling featured a strong dissent from Chief Justice John Roberts and another from Justice Antonin Scalia.
Roberts said the decision has limits.
“I think it … important to point out that its analysis leads no further. The court does not have before it, and the logic of its opinion does not decide, the distinct question whether the states, in the exercise of their ‘historic and essential authority to define the marital relation,’ … may continue to utilize the traditional definition of marriage.”
Scalia noted: “We have no power to decide this case. And even if we did, we have no power under the constitution to invalidate this democratically adopted legislation. The court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.”
The majority opinion delivered by Justice Anthony Kennedy was joined by the liberal quartet of Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
“DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages,” Kennedy wrote. “It contrives to deprive some couples married under the laws of their state, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same state. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the state has found it proper to acknowledge and protect.”
In the California case, the court left a ruling issued by a homosexual judge in place: that the state's voters are not allowed to define marriage in their constitution as being between one man and one woman.
"The litigant must seek a remedy for a personal and tangible harm. … The parties do not contest that the respondents had standing to initiate this case against the California officials responsible for enforcing Proposition 8. But once the district court issued its order, respondents no longer had any injury to redress, and the state officials chose not to appeal."
Defenders of traditional marriage have warned that allowing same-sex marriage will lead to further redefinitions of the institution.
The former archbishop of Canterbury, George Carey, recently told lawmakers in the United Kingdom that by approving same-sex marriage they open the door to allowing polygamy and incest.
A California state Supreme Court justice earlier said the same thing.
Carey, according to the London Daily Mail, told Prime Minister David Cameron that an "equal marriage" proposal would produce unwanted results.
Under the redefinition that lawmakers are considering, there would be no reason to exclude two sisters living together who want to be married and multiple-partner arrangements such as polygamy would have to be supported, Carey argued.
A California Supreme Court justice issued a similar warning when that court created same-sex marriage for that state in 2008.
That law later that year was overruled by voters, who adopted a state constitutional amendment, Proposition 8, limiting marriage to one man and one woman.
The U.S. judge who issued the warning was Justice Marvin Baxter of the California Supreme Court.
He dissented from the majority 2008 opinion, arguing the consequences of the ruling were not thought out.
He wrote: "The bans on incestuous and polygamous marriages are ancient and deeprooted, and, as the majority suggests, they are supported by strong considerations of social policy. … Our society abhors such relationships, and the notion that our laws could not forever prohibit them seems preposterous.
"Yet here, the majority overturns, in abrupt fashion, an initiative statute confirming the equally deeprooted assumption that marriage is a union of partners of the opposite sex. The majority does so by relying on its own assessment of contemporary community values, and by inserting in our Constitution an expanded definition of the right to marry that contravenes express statutory law."
"Who can say that, in 10, 15 or 20 years, an activist court might not rely on the majority's analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?"
His comments largely were ignored by the media, other courts and politicians. But they were echoed by Carey, who said the U.K. proposal overturns the understanding of marriage that ci
"A reason why we should be worried by the redefining of marriage is the unintended consequences of such a step," he said.
"Once we let go of the exclusivity of a one-man one-woman relationship with procreation linking the generations, they why stop there?" he continued. "If it is about love and commitment, then it is entirely logical to extend marriage to two sisters bringing up children together. If it is merely about love and commitment, then there is nothing illogical about multiple relationships, such as two women and one man."
He said the concept that marriage is for those who care deeply for each other and want to spend their lives together is "a wholly inadequate understanding of marriage."
"Those of us accused of being on the wrong side of history can only plead with the government to respect our concern that extending marriage to same-sex couples is not only unwise, but also sets a dangerous precedent," he said.
The London Daily Mail reported his comments were released through a publication from Civitas, an activist organization.
The DOMA decision, which now apparently will allow same-sex partners in states that recognize same-sex marriage to enjoy spousal benefits offered by any government program, grants a huge benefit to Edith Windsor.
When same-sex partner Thea Spyer died in 2009, she left her estate to Windsor, who didn't want to pay estate tax on it. Ultimately, she did, but filed suit to challenge DOMA.
(Section 2 of DOMA, which allows states to refuse to recognize same-sex marriages from other states, was not challenged.)
The court noted the complication by Obama's own determination on the constitutionality of the law.
"The executive's failure to defend the constitutionality of an act of Congress based on a constitutional theory not yet established in judicial decisions has created a procedural dilemma. On the one hand, as noted, the government's agreement with Windsor raises questions about the propriety of entertaining a suit in which it seeks affirmance of an order invalidating a federal law and ordering the United States to pay money. On the other hand, if the executive's agreement with a plaintiff that a law is unconstitutional is enough to preclude judicial review, then the Supreme Court's primary role in determining the constitutionality of a law that has inflicted real injury on a plaintiff who has brought a justiciable legal claim would become only secondary to the president's. This would undermine the clear dictate of the separation-of-powers principle…"
The opinion said the federal government needed to bend to the will of New York officials, who first recognized same-sex "marriages" from other states, then instituted their own process.
"DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the federal government," the majority said.
Said Roberts: "That the federal government treated this fundamental question differently than it treated variations over consanguinity or minimum age is hardly surprising – and hardly enough to support a conclusion that the 'principal purpose,' … of the 342 representatives and 895 senators who voted for it, and the president who signed it, was a bare desire to harm."
Scalia was more blunt.
"This case is about power ... it is about the power of our people to govern themselves, and the power of this court to pronounce the law. Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former," he said. "The court is eager – hungry – to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges' intrusion into their lives. They gave judges, in Article II, only the 'judicial power,' a power to decide not abstract questions but real, concrete 'cases' and 'controversies.' Yet the plaintiff and the government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?"
He accused the majority of making "an assertion of judicial supremacy over the people's representatives in Congress and the executive."
"That is jaw-dropping," he said. The majority "envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere 'primary' in its role."
Staver previously warned a governmental endorsement of alternative sexual lifestyles would create unsolvable clashes between those who want to pursue those lifestyles and the religion rights of the rest of society.
"We saw what happened in Massachusetts, and it's just one of many, many examples of where same-sex marriage and same-sex unions come into play. Catholic charities have had to get out of the adoption ministry because they're not going to violate their religious beliefs and place children in homes with same-sex couples. You see that with people who run bed and breakfasts, wedding photographers, cake decorators and it goes on and on and on, where you're going to have to choose between your profession or same-sex agendas," he said.
"Then you look at the public schools. Parental rights will be undermined. Children as young as kindergarten will be forced to have information fed to them about, not just tolerance and alternative families which is bad enough with regards to re-definition of the family, but that same-sex, aberrant sexual behavior is normative, good and healthy. That's the kind of thing that you're going to see in the public schools, and we're seeing it already in some of these states like Massachusetts that have adopted same-sex marriage," Staver said.
"This would be on a nationwide basis. It would be catastrophic. I think it would ultimately be the beginning of the end of the United States of America as we know it."
In California, Vaughn Walker, the homosexual judge who heard the Prop 8 case, ruled voters were not allowed to define marriage in their constitution. The state Supreme Court had created same-sex "marriage," but voters then overturned it. Critics noted his personal interest in the case:
- "Before the trial even began, the 9th Circuit issued an extraordinary write of mandamus to overturn Chief Judge Walker's order requiring proponents to turn over confidential internal communications."
- "Also before the trial … the Supreme Court of the United States issued an emergency stay … enjoining Chief Judge Walker from video recording and disseminating the trial proceedings…"
- "Walker's decision recognizing a right under the Federal Constitution for same-sex couples to have their relationships recognized as marriages conflicts with the judgment of every state and federal appellate court to consider the validity of the traditional opposite-sex definition of marriage. …"
- Walker peremptorily held that gays and lesbians are a suspect class … even though all 11 Circuit Courts of Appeals … have repeatedly and squarely held to the contrary."
- "Walker refused to stay his judgment pending appeal. As a result, the 9th Circuit was forced to issue such a stay."
In his ruling advancing same-sex "marriage," Walker also arrived at the following highly controversial legal findings:
- "Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians."
- "Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed."
- "The gender of a child's parent is not a factor in a child's adjustment."
- "The evidence shows beyond any doubt that parents' genders are irrelevant to children’s developmental outcomes."
- "Gender no longer forms an essential part of marriage; marriage under law is a union of equals."
- "Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples."
The court's ruling on Prop 8 was 5-4, with Roberts writing the majority opinion.
"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," he wrote. "We decline to do so for the first time here.
The decision by then-California Gov. Arnold Schwarzenegger to not appeal Walker's ruling meant that for the first time, same-sex "marriage" was created by an executive decision.
All other such decisions have been by judicial fiat or legislative vote.
"The court does not question California's sovereign right to maintain an initiative process, or the right of initiative proponents to defend their initiatives in California courts. But standing in federal court is a question of federal law, not state law. No matter its reasons, the fact that a state thinks a private party should have standing to seek relief … cannot override this court's settled law to the contrary. … States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse," Roberts wrote.
The result is that same-sex "marriage" is expected to return to California, based on the decision of a judge whose personal circumstances are intertwined with the ruling he made.
In a dissent, Kennedy wrote that the standards seem to vary on the Supreme Court bench. On one hand a state standard is being used, on another, discarded.
"Under California law, a proponent has the authority to appear in court and assert the state's interest in defending an enacted initiative when the public officials charged with that duty refuse to do so. … Yet the court today concludes that this state-defined status and this state-conferred right fall short of meeting federal requirement."
He continued: "The court's reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials – the same officials who would not defend the initiative, an injury the court now leaves unremedied."