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.

This entry was posted in Federalism, Gay Rights, Marriage. Bookmark the permalink.
  • Republitarian

    Today the Supreme Court of the United States once again demonstrated
    its ongoing failure to comprehend reason and the Constitution of The
    United State of America. It’s ruling relative to California’s
    Proposition 8 is objectionably flawed to the extent that one must
    question the rational of their collective thought process.

    I know that may offend some folks, but so be it. Getting, or not
    getting, what you want from a politically motivate court certain
    generates frustration. Yet, neither the ruling nor the resultant
    frustration adequately defend poor and inconsistent judgements.

    In short the Supreme Court of the United States ruled that litigants
    seeking relief had no standing. By that ruling they in essence
    declared, “This is to hot of a potato for us to handle, let’s kick it
    back to a lower court to make the fix.”

    In 2002 a proposition (22) was passed in California which stipulated
    that marriage was between a man and woman. It was passed as a regular
    piece of legislation.

    The California Supreme Court ruled in 2008 that Proposition 22 was unconstitutional.

    In November of 2008 Proposition 8 was passed by the people of the
    State of California. Proposition 8 contained the same language as
    Proposition 22, but also had the full force of a properly executed
    initiative behind it. The people had spoken.

    A series of opponents to Proposition 8 lodged protests and filed
    lawsuits challenging the validity of the proposition. Ultimately the
    California State Supreme Court ruled that Proposition 8 WAS

    Now, here is a relevant point I ask you
    to keep in mind. A UNITED STATES DISTRICT COURT JUDGE ruled in 2010
    that Proposition 8 violated the US Constitution.

    Following the ruling of the US District Court, the Ninth Circuit
    Court of Appeals, another US Court, upheld the ruling of the District
    Court Judge. That brings us to today wherein The Supreme Court of the
    Unite States (SCOTUS) shirked their duty to orule on this matter, by
    bouncing it back to the lower court. Now, contrary to my clear
    displeasure with The SCOTUS I share here their actual decision:

    “We have never before upheld the standing of a private
    party to defend the constitutionality of a state statute when state
    officials have chosen not to. We decline to do so for the first time

    Because petitioners have not satisfied their burden to demonstrate
    standing to appeal the judgment of the Dis­trict Court, the Ninth
    Circuit was without jurisdiction 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.

    My complaint is with the insufficiency of that ruling by The United States Supreme Court.

    The Supreme Court should have included that the US District Court’s
    ruling should also be dismissed by the Ninth Circuit Court. In essence
    their ruling should have gone further to declare, “The
    judgment of the Ninth Circuit is vacated, and the case is remanded with
    instructions to dismiss the appeal for lack of jurisdiction, and with
    instructions to dismiss the ruling of the United States District Court
    and the tainted fruits thereof.”

    However, that failing of The SCOTUS is compounded by failure to
    recognize the fundamental principle of the Ninth Amendment to the United
    States Constitution.

    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    In California there is a constitutionally mandated process by which
    “the people” may establish the regulation of state functions. The
    process has been tested and upheld in the courts. Further, the
    California Supreme Court, as explained above, upheld “the people’s”
    decision regarding Proposition 8.

    California has a history and state constitution, supported by their
    Supreme Court, affirming the right of “the people” to legislate the
    regulations of the state. The Ninth Amendment of the US Constitution is
    not arbitrary in affirming that the rights bestowed upon the citizens
    of California are sacrosanct. The people of California have full state
    and federal constitutional protection to establish the regulation of
    their state.

    When the United States Supreme Court ruled that complainants against
    the aggressive nature of the lower federal courts, combined with the
    dereliction of duty by the State of California officials, had “no
    standing” they were tragically flawed in their comprehension of the
    fundamental rights of all citizens in social contract under the US

    In addition to the amended ruling which I stated above I would now add another sentence. “The
    judgment of the Ninth Circuit is vacated, and the case is remanded with
    instructions to dismiss the appeal for lack of jurisdiction, and with
    instructions to dismiss the ruling of the United State District Court
    and the tainted fruits thereof. Further, this court finds
    that the rights of the people of the State of California, acting in a
    majority through the initiative process, are absolute and clear with
    respect to establishing state statute, and shall not be abridged except
    by the people.”

    Societies have the right to government as they choose. Now, it is
    abhorrently distasteful to citizens of the USA (and I hope to most
    people) but sometimes societies choose to live under governments which
    restrict their personal liberties. In the United States, long ago, we
    chose to be governed by the will of the people. Whether one agrees with
    civil unions and same-sex marriage, or not, should not impede the right
    of the people to rule regarding their social contracts. When any
    government acts in any manner, regardless of how noble they may define
    their conduct, to overbear upon the people those acts are wrong. It is
    the duty of the Supreme Court to assure that the will of the people is

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