Supreme court DOMA and Prop 8 marriage cases: a preliminary analysis

Wedding rings

The U.S. Supreme Court has now issued its decisions in the two marriage cases, both on 5-4 votes.

In the Proposition 8 case, the majority said that since the group that had brought the measure to the voters had not experienced any personal injury from the original federal court decision (i.e. they were not required to do or not do something) holding Proposition 8 unconstitutional, they could not appeal that decision. They only needed to appeal because the government officials with the responsibility of doing so refused in order to sabotage the law. That ruse seems to have worked now and the bizarre opinion by Judge Walker saying Proposition 8 was unconstitutional because he found it irrational is still valid. There will have to be some further developments to sort out the implications of this decision (for instance, does it only apply to the parties in the original lawsuit so that a county clerk could refuse to comply?).

In the case challenging the federal Defense of Marriage Act, the majority was willing to address the substantive issues but the reader will wish they had not. The majority (Justice Anthony Kennedy was the author) decided DOMA was unconstitutional. Why? Well, the court begins talking about federalism concerns as if it is going to conclude that Congress could not define terms in federal law contrary to the way states use the terms in state law. Perhaps because of the extreme novelty of this rule, the majority backs away from it and says it doesn’t have to decide the question.

Rather, Justice Kennedy says that DOMA is a violation of the constitution (it’s not clear which provision as Justice Scalia points out in dissent) because its purpose and effect is to interfere with “the equal dignity of same-sex marriages” and because it treats same-sex marriages “as second-class marriages for purposes of federal law.”

The majority cites to the earlier decision that private acts of sodomy were protected from criminal prosecution. It says that because New York has given same-sex couples legal status based on their private intimate relationship, it is unconstitutional for the federal government to treat those relationships differently from the relationships most other states have recognized as marriages.

Specifically, Justice Kennedy believes that the nature of the law (recognizing some “marriages” and not others) allows the court to infer that it is motivated by animus and, therefore, can’t be justified for any reason.

But, the majority says, this does not mean that state marriage laws are necessarily unconstitutional.

If this is confusing, don’t worry. It’s not clear to many people and that means there will be plenty of litigation in the future over the question. Perhaps that will be good for the legal trade, but it comes at a heavy price for marriage and self-government.

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