Supreme Court Invalidates DOMA – Punts On Prop 8


Today, the United States Supreme Court struck down the Defense of Marriage Act, claiming it is unconstitutional. The ruling was based on a 5-4 decision, which was authored by Justice Anthony Kennedy. Among the dissent was Justice Roberts, Scalia, Thomas and Alito.

According to SCOTUS blog:

“The federal Defense of Marriage Act defines ‘marriage,’ for purposes of over a thousand federal laws and programs, as a union between a man and a woman only. Today the Court ruled, by a vote of five to four, in an opinion by Justice Kennedy, that the law is unconstitutional. The Court explained that the states have long had the responsibility of regulating and defining marriage, and some states have opted to allow same-sex couples to marry to give them the protection and dignity associated with marriage. By denying recognition to same-sex couples who are legally married, federal law discriminates against them to express disapproval of state-sanctioned same-sex marriage. This decision means that same-sex couples who are legally married must now be treated the same under federal law as married opposite-sex couples.”

In plain English, they are claiming that DOMA is unconstitutional because it is allegedly a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.

Scalia wrote that “the Constitution does not forbid the government to enforce traditional moral and sexual norms.” He went on to claim, like Justice Roberts, that the Court lacked jurisdiction to hear the DOMA case because there was no actual controversy. He said that the Court was intervening to resolve a constitutional issue without a controversy, something that it doesn’t have power to do.

Scalia then wrote against the majority, “It 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.”

DOMA was passed by Congress and signed into law in 1996 by President Bill Clinton.

Regarding California’s Prop 8, Townhall’s Guy Benson writes:

While the federal portion of DOMA has been tossed out (the federal government must now recognize same-sex marriage performed in states that allow the practice), it appears that the high court has not require states to recognize same sex unions from other states.  In Chief Justice Roberts’ dissent, he hints that the Court will dismiss the Proposition 8 gay marriage case from California, based on standing issues.  That decision, Hollingsworth v Perry, will be released in a few minutes.  So it looks like the Court has given gay rights proponents a significant win on DOMA, while preserving some level of respect for federalism on the issue, and has not handed down a sweeping ruling on gay marriage.  We’ll have to wait to see Perry to know for sure, but it doesn’t sound like the Court has established a right to marriage for same-sex couples.  Here are the key grafs from Kennedy’s majority opinion:

“The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.

What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”

The Court, in a 5-4 decision, has declined to rule on the constitutionality of Prop. 8, California’s 2008 amendment limiting marriage to one man and one woman.  The decision, authored by Roberts, is a procedural one.  Quote: “The Ninth Circuit was without jurisdiciton to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.”  This is effectively a punt.  The Court neither affirmed nor stuck down Prop. 8 — thus, no major precedent is set.  Because the most recent lower court decision tossed out Prop 8, same-sex marriages are likely to resume in California for the time being.  The 5-4 coalition is an unusual one: The majority features Roberts, Scalia, Ginsburg, Breyer and Kagan.  Dissenters are Alito, Thomas, Sotomayor and Kennedy.

Justice Kennedy wrote “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.”

He also went on to write, “In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century.”

While many have called this a “double win” for the homosexual community, it was also a win for state’s rights as it doesn’t impose a redefinition of marriage upon the states.

As Joel Pollak writes, “Overall, the two gay marriage decisions today represented a victory for advocates of same-sex marriage, but also upheld the principle of state powers–a pattern for the Roberts court, which has tended to uphold liberal legislation and views but has re-affirmed federalist principles once thought to be in decline. As with other state powers decisions by the Roberts court, however, these decisions could limit the ability of citizens of those states to decide complex matters for themselves, strengthening officials’ power at the expense of voters.”

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