While the rulings were tainted by hateful, slanderous smears from the left wing of the Court, the decisions reached on Wednesday in Hollingsworth v. Perry & United States v. Windsor began (albeit in a roundabout way) the process of restoring a bizarre form of Federalism in the area of marriage, granting marriage equality to California SSM proponents and removing the Federal Government’s authority to define marriage, while allowing individual states to maintain the authority to define marriage within their borders.
The court ruled, in a decision written by Justice Kennedy that “DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and 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.” Tellingly, on Section 2 of DOMA, which gives states the power to make the decision whether to respect same-sex marriages from other states, the Court expressed no opinion, leaving it standing.
It’s very troubling that the majority seemed to declare that for supporters of Proposition 8, the only motive for opposition to SSM was to injure or otherwise harm those who wished to enact SSM. The point was most clearly made by Justice Scalia, who said in his dissent:
“But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. 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.”
The majority decision essentially declared that the Federal Government must hold all marriages as equal – straight or gay. What this means, in plain terms, is that same-sex couples who are legally married (by the laws of the state in which they are married) will be entitled to equal treatment under federal law – with regard to, for example, income taxes and Social Security benefits.
At the same time, the court still did not take the extraordinary step of requiring all states to recognize marriages as they are defined in other states. Texas does not have to recognize SSM marriages in Massachusetts or California. At the end of the day, the ultimate outcome is that the Federal Government should play no role whatsoever in determining marriage, and the citizens of each state should be permitted to define marriage for themselves.
SCOTUSblog had the best “plain English” explanations of the rulings in both cases today. In Hollingsworth v. Perry, “the challenge to the constitutionality of California’s Proposition 8, which bans same-sex marriage: After the two same-sex couples filed their challenge to Proposition 8 in federal court in California, the California government officials who would normally have defended the law in court, declined to do so. So the proponents of Proposition 8 stepped in to defend the law, and the California Supreme Court (in response to a request by the lower court) ruled that they could do so under state law. But today the Supreme Court held that the proponents do not have the legal right to defend the law in court. As a result, it held, the decision by the U.S. Court of Appeals for the Ninth Circuit, the intermediate appellate court, has no legal force, and it sent the case back to that court with instructions for it to dismiss the case.”
In United States v. Windsor, ” 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.”
“Today’s Supreme Court decisions on marriage are a regrettable overreach against the will of the people as expressed through large, bipartisan majorities in Congress and directly through referendum in California – a markedly blue state.
Nothing in the Constitution compelled this result, and, once again, the Court has chosen to substitute its own views of public policy for the democratically expressed will of the voters.
The family is the fundamental building block of society, and I strongly support traditional marriage between one man and one woman. The voters of California made that same choice, until the courts improperly substituted their preferences for those of the people.
Our Federalism allows different states to make different policy judgments based on the values and mores of their citizens. Federal courts should respect that diversity and uphold that popular sovereignty, not impose their own policy agenda.”
The Federal Government must now undertake the daunting task of changing thousands of pages of policies, laws and regulations to reflect the changes issued by the Court. An expense that could have been avoided if the Federal Government had either been uninvolved in marriage, or better still, if a Constitutional Amendment defining marriage as between one man and one woman had been enacted earlier.
With their decision, members of the court have imposed by judicial fiat what proponents of SSM were unable to achieve through the ballot box, and upheld a tainted decision by a lower court (presided by a biased judge with a conflict of interest) that upended the legal referendum held by California’s citizens. So be it. Change is natural. Let California join with the other states that have enacted SSM, and continue the process of experimentation the founders intended in our Republic. As they create a society in which members of the LGBT community feel welcomed and celebrated, they will experience the gradual and sudden changes accompanying such a decision.
By that same token, let Texas and other states which have decided to embrace the traditional, historic definition of marriage to continue to define marriage for their citizens as well. Those who desire to live in a state in which SSM is accepted as law can move there, and vice versa. People who believe that marriage should be limited to the long-held traditional and historically understood definition should move to states which share their views, forming stronger communities of citizens whose shared values form a more cohesive and desirable society. The results would be interesting at the very least.