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Gay Marriage Comes to the Supreme Court

Yesterday, the Supreme Court announced that it would hear appeals in two cases involving same-sex marriage.   The Court will decide the fate of:

  • The Defense of Marriage Act (DOMA): can the federal government define “marriage” for the purpose of eligibility for federal benefits?

  • California Proposition 8: can a state define “marriage” as the union of one man and one-woman?

The two cases should raise distinct issues.  When considering DOMA the Court should address whether the law raises any federalism concerns.  I think it does (even though such concerns may not be fatal to the law).  Traditionally, when federal law refers to “marriage” or related concepts, the feds defer to state law to determine whether a given marriage is valid.  DOMA doesn’t force states to change their laws, but it puts a thumb on the scale.  The Court needs to discuss under what circumstances the federal government can (how shall I put this?) encourage states to change their internal laws.  For example, can the federal government create its own definition of a valid corporation, etc.?

But, alas, the Supreme Court may not reach the federalism issue because the lower courts barely touched it.  In the DOMA case (Windsor v. United States), the Second Circuit basically used an Equal Protection analysis.  What is notable is that the court held that traditional marriage laws must meet a heightened level of scrutiny because they presumptively discriminate against a “quasi-suspect class” (homosexuals) who, collectively, lack political power.  

As our own Richard Epstein has often pointed out, once a court decides to apply heightened scrutiny, the law under review is doomed.  Such was the case in Windsor, where the court dismissed in the most cursory fashion imaginable, the federal government’s interest in defining marriage. The concept of “preserving the traditional  understanding of marriage” is brushed aside in two short paragraphs.   And “encouraging responsible procreation?”  Again, two paragraphs is all it gets.  As Nancy Pelosi might say: “are you serious?”

The Prop 8 case is a Ninth Circuit decision penned by the paleo-liberal judge Stephen Reinhardt.  Reinhardt also based his decision on Equal Protection.  Although he claimed that his decision was limited only to the specific facts of the California law, the rationale is fatal to other traditional marriage laws.  

In the Equal Protection rulings, the lower courts have been ignoring Supreme Court precedent — we’ll see if the High Court lets them get away with it.  In 1972, the Court held that Minnesota’s traditional marriage law did not raise any issue under the Equal Protection Clause (or any other constitutional provision) (Baker v. Nelson).  The Court has never revisited that decision.  In 2003, when the Court struck down anti-sodomy laws, the majority promised that its decision (Lawrence v Texas) had no bearing on same-sex marriage because there are other reasons for a state to preserve traditional marriage “beyond moral disapproval of an excluded group,” as Justice O’Connor put it. 

But that was then, and this is 2012.  Lower courts have now assumed the power to overturn binding Supreme Court precedent and to declare that Justice O’Connor failed to perceive the anti-gay prejudice behind all traditional marriage laws.   Stay tuned.

  1. Peter Robinson
    C

    Thanks for the overview, Adam.  You present the issues more lucidly, calmly, and credibly than the New York Timesway more credibly than the Times.

  2. ConservativeWanderer

    I am sure Chief Justice John “ObamaCare is a tax” Roberts will find a way to justify the Obama position on both cases, and declare new taxes in the process.

  3. Richard Nevins

    I am OK with tossing out DOMA because the states ought to be able to decide who is married and who isn’t.  Any federal rights should follow the state status of a couple.

    The CA issues seem to me to be very different.  The state population, twice, expressed its view, a view that reflects a historical consensus in America going back hundreds of years.  Then a small number of “men in black” substituted there own views.  

    I favor gay marriage, but I think that it is a legal status that should arise through legislation or referendum, not through litigation.  There should be an expressed social consensus. 

  4. katievs
    Richard Nevins: I am OK with tossing out DOMA because the states ought to be able to decide who is married and who isn’t. 

    I’m not okay with that.  If the Supreme Court declares that the states have a right to abolish marriage as a natural institution beyond the scope of government power, they will being taking a dramatic step toward the dissolution of the American Experiment. 

    The American Experiment is grounded on natural law. It accepts that there is a design to human nature, and a Creator who designed it, to whom we owe reverence.  It recognizes that governments get their legitimacy not only from the consent of the governed, but from their respect for what is given in human nature.  

    If they use law to declare that the states have a right to manipulate marriage to suit the demands of those in power (including a majority of voters), we will have suffered another grievous blow from which it will be difficult, if not impossible, to recover.

  5. Joseph Eagar
    katievs

    If they use law to declare that the states have a right to manipulate marriage to suit the demands of those in power (including a majority of voters), we will have suffered another grievous blow from which it will be difficult, if not impossible, to recover. · 14 hours ago

    Except states do have that right.  That isn’t under question; DOMA doesn’t prohibit states from regulating marriage, it simply sets the federal definition for the purposes of federal law.  Marriage, for the most part, is defined by the states.

    I don’t particularly care whether DOMA lives or dies, and hopefully it’s a distraction from the real issue: will the Supreme Court nationalize marriage by forcibly legalizing SSM.  As I’ve said before, I think that would entrench hatred of gay people, in a way that more democratic means of legalization would not.

  6. katievs

    Joseph, the way I understand it is that it has always been so that states can regulate marriage.  For instance, deciding what age is the age of consent.  They have never had the right to fundamentally  change its basic meaning.

    Again, that would be to change marriage from a natural institution, which the state is bound to protect and uphold, into a creature of the state, which the state can alter or abolish at will.

  7. Joseph Eagar
    katievs: Joseph, the way I understand it is that it has always been so that states canregulate marriage.  For instance, deciding what age is the age of consent.  They have never had the right to fundamentally  change its basic meaning.

    Again, that would be to change marriage from a natural institution, which the state is bound to protect and uphold, into a creature of the state, which the state can alter or abolish at will. · 0 minutes ago

    I certainly don’t think marriage should be a creature of the state (there’s a reason I obsess over state referendums as vehicles for legalization of SSM).  Regardless, state governments have always had quite a bit of leeway in this respect; if I remember correctly, it’s part of the police power.  Anyway, we’d have to ask our resident lawyers to be sure.

  8. Herbert Woodbery

    Except states do have that right. That isn’t under question; DOMA doesn’t prohibit states from regulating marriage, it simply sets the federal definition for the purposes of federal law. Marriage, for the most part, is defined by the statesYep. Therefore it is almost certain doma will be struck down by a wide majority.As I’ve said before, I think that would entrench hatred of gay people, in a way that more democratic means of legalization would not.People who dislike gay people will do it regardless of if they are married or not.As for the outcome of the California case I’m hopeful the court will uphold the lower rulings, especially walkers. But it isn’t clear that this will be the case.

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