Of the Supreme Court and Gay Marriage


Well the voices of alarm are at full throat this week.   The Supreme Court will unveil its decisions on two cases dealing with gay marriage. To the pressure groups and much of the media, these two cases are essentially the same; however, that is because to them messaging is more important than substance.

One case Hollingsworth v. Perry the plaintiffs are seeking to have California’s ban on same-sex marriage overturned.  The other case U.S. v. Windsor,  there is a challenge to the Defense of Marriage Act (DOMA).  

Among think tanks these cases have created some very odd bedfellows.  For instance the libertarian Cato institute and a number of conservative legal scholars have declared DOMA as being unconstitutional social engineering and that it should be overturned. Thus allying them with the Obama administration and the gay rights organizations.  

The CATO institute also has come out to oppose Proposition 8 taking the libertarian position that the equal protection clause does apply and that proposition 8, which banned same-sex marriage,  is an unacceptable intrusion into private affairs.

Of course the loudest voices are those political pros who make their living making a lot of noise.  The Christian Taliban are out in force promising God’s judgment on the US is  the court overturns these two laws.   This morning I as late to work, so I turned on local talk radio (rather than NPR’s Morning Edition as I usually do) and heard the vitriol.   The callers universally believe that the US is a “Christian” nation and that it is the government’s job to keep everyone acting in a righteous way (as they define it) and thus, these two laws are justified to keep God’s favor by condemning homosexuality.   On one hand I found these people laughably provincial, since they seem to think all of the US is just like the rural South.  On the other hand they are scary because this is a core belief that the job of government is to enforce “God’s law”, as they see it, on everyone (hence I call them the Christian Talban).

The other group is not nearly as crazy, but they speak in their own hyperbole.  To liken California’s Proposition 8 to the Jim Crow laws is laughable if it weren’t used with such good effect.  California has very comprehensive domestic partnership laws, so comprehensive as to make domestic partnerships virtually indistinguishable from marriage.  Yes, there are some rights not afforded, but mostly this very bitter fight over Proposition 8 is about symbolism over substance (for both sides).

What is most interesting in California is that if the Supreme Court upholds Proposition 8 as a proper exercise of the citizens to enact their own laws (which I think they will do); and strikes down DOMA as an improper usurpation of federal authority over the states (which I think they will also do, then the difference between domestic partnerships and marriage will be very meaningful.   So, in California there will be an immediate drive to repeal Prop. 8.   In such a case I have no doubt that Prop. 8 will be repealed.

I’ll say right here, that I think Prop. 8 should be upheld.  The integrity of the democratic process outweighs the right to use the word “marriage”.  This is not like the Civil Rights Act.  Gay and Lesbian American’s not only have equal political rights, it can be fairly argued that their political influence greatly exceeds the 1.7% of the population which they represent.  If they want the right to marry, the road map is laid out already. Just  get the voters on board as has been done in several states already.  I would suggest that Prop. 8 and  DOMA were both reactions to courts getting ahead of the people on this and in the end, activist courts who try to impose their will over the population do the GLBT community a disservice.  There is little doubt that demographics will resolve this issue in many states in the next few years.

DOMA will likely be overturned (and correctly so) by a large majority of the Supreme Court; but, with different opinions being written as to why it is unconstitutional.  The effect will be that states and the federal government will have to recognize the marriages of each and every state.  This, in fact, is not new, the Constitution requires state afford full credit of all  “public acts, records, and judicial proceedings of every other state”, thus every state will have to recognize the marriages of same sex couples, even if they do not permit such marriages in their own state.   So, if South Carolina doesn’t permit same-sex marriage anytime in the next century, then same sex couples can go get married in Oregon, or in D.C., and come home married.   This is the significance of DOMA; DOMA gave protection for states that do not recognize same sex marriages performed in states that permit them. Striking down DOMA will (should) force all states to recognize the legality of all marriages performed in any state.

So, a win on DOMA and a loss on Prop.  8, will still be a big win for marriage equality.

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