The Hydra-Headed DOMA Decision and Bankrupting the States

We all deserve the freedom to marry

Michigan state law allows health benefits for school employees and their spouses.

It does not allow health benefits for domestic partners.

US District Judge David Lawson struck down this law on June 28. He based his decision on the recent Supreme Court decision overturning the first half of the federal Defense of Marriage Act.

State law determines what benefits public school employees will receive. These benefits are paid for out of the state coffers. One would think that this would be a state’s rights issue, determined by the state’s legal definition of what constitutes a spouse.

However, the recent Supreme Court decision has allowed the judge to overstep state definitions of marriage and require the State of Michigan to extend health care benefits to domestic partners.

According to CNA:

U.S. District Judge David Lawson’s June 28 ruling said it can “never be a legitimate purpose” to deny health benefits to the same-sex partners of public employees. He said the plaintiffs who lost benefits or had to pay for more expensive private health insurance have a “plausible claim” that the law violates the U.S. Constitution.

The 2011 law ended same-sex partner benefits for a few school districts, the counties of Ingham and Washtenaw and the cities of Ann Arbor, East Lansing and Kalamazoo, the Associated Press said.

Defenders of the law said it was passed in the spirit of a 2004 constitutional amendment that defined marriage as a union of a man and a woman. That amendment won 58 percent of the vote.

This, of course, raises other questions for Michigan, and for all states. The Supreme Court decision essentially overturned state definitions of marriage as between one man and one woman, at least for all practical purposes. The Michigan case is just one small example of how far-reaching this Supreme Court decision actually is.

Money down the drain

It will require a change in how the states pay for things such as employee benefits and entitlements. This district court decision pushes the envelope past legal marriages and into the area of domestic partnerships. Since our laws are required to be equal in their applications, that means that it does not just apply to domestic partnerships between same-sex couples, but between virtually anyone.

I realize that is not what the judge specifically addressed in his ruling, but that is the impact of the ruling. It may take a few court cases to make the point, but if this ruling stands up under appeal, that will be its effect in the long term.

The question immediately arises: How are the states going to pay for this? The answer, I’m pretty sure, is that they can’t. Oklahoma is actually in better financial condition than many states, and we would be flummoxed trying to provide benefits for every live-in “domestic partnership.” Of course, the federal government might decide to step in with huge subsidies for these benefits, but that raises the ugly question of how they are going to pay for it.

The only financially responsible answer that provides equal protection under the law that I can see is to either change state laws to redefine marriage to include gay couples and then wait for the next big trendy change allowing polygamy, followed by benefits to cohabiting heterosexuals, OR, do away with benefits for everybody. That is the effect of the Supreme Court’s decision on DOMA on the states.

I have no doubt that in the long run — and I’m talking about years, maybe a decade, but not much longer — where we will end up is doing away with benefits for everyone. It will be a simple financial imperative.

Welcome to the brave new world of marriage is whatever we say it is today.

What Will the Supremes Do with Gay Marriage?

SCOTUS pix 2011

Tomorrow is the day that the Supreme Court is scheduled to hand down rulings that will affect how America deals with the definition of marriage for decades to come.

The legislation in question is the Federal Defense of Marriage Act and California’s Proposition 8.

The Court can do anything. It can remand the whole question back to the states. Or, it can issue a ruling of sweeping proportions similar to Roe v Wade. It can even announce that it isn’t going to rule at all.

People on both sides of the question studied the Justices’ every twitch and cough when the cases were presented earlier this year. We all wanted a crystal ball so that we wouldn’t have to endure the suspense of months of waiting before we found out which way and how far the Court was going to jump on this issue.

Tomorrow, the waiting and guessing will be over. The Court will make its ruling.

After that will come the dissecting and rejecting of whatever they rule. I am reasonably certain that no matter what the Court does on this issue, a large segment of the American population is going to be unhappy and angry about it. I am equally certain that no matter what the Court does, the debate about how we will define marriage under the law will continue.

Which leads me to the question of how we should behave tomorrow and on into the months and years ahead. Much of the debate concerning this issue has devolved into slander of people who hold opposing views. I think part of the reason why this happens is that both sides of the argument believe that their position is a moral imperative. Another part of why we behave so terribly when we discuss how to define marriage is that the temper of our times has taught us that bullying, slander, smear tactics and mud-slinging are legitimate tactics.

Instead of dealing with the issues at hand and talking about the arguments being made, we tend to try to discredit the people making the arguments.

My feeling about this is that if you are a Christian, you have a moral responsibility to forgo this kind of behavior. It does not matter what they call you, you may not slander them back. Let the other side have the low road.

Slander

We are defending home, family, life. We are defending the core institution on which Western civilization is built. We do not need to attack anyone to do that.

Also, we need to remember that homosexuals are just people. More importantly, they are children of the same God whose teachings we are trying to defend. No matter what they say or do, they are our brothers and sisters in creation. We should try to convert them, not destroy them.

The other side of public debates involving Christian values of any sort always seems to try to base their arguments on Christian bashing and degrading our faith. It can be hard to take; especially when they defame the name of Jesus. But do not reply by degrading or defaming them. Do not do it.

That does not mean that we should back away from saying the truth of things. It just means that we should forgo attacking people. We can talk about issues and even bad behavior all we want. Just don’t attack a person while we do it.

I believe that no matter how the Court rules tomorrow, the fight will go on. I also believe that no matter how the Court rules or what detours or setbacks we suffer, the victory will ultimately be ours. All we have to do is our part, and do it in a way that lets everyone who observes us know that we serve a Risen Lord.

Tea Leaves and Goat’s Entrails: Guessing What the Supremes Will Do About Gay Marriage

I’ve read that the ancients used to slaughter a goat and study its entrails to try to predict the future. Others made tea and studied how the tea leaves settled to the bottom of the cup for the same purpose.

We all want to know what’s going to happen. We’re smart enough to anticipate, but not prescient enough to know. This human conundrum has kept fortune tellers and sooth sayers of one sort or the other in business for all of human history.

I’m telling you this as a caution. What observers of the Supreme Court think they see in the twitch of a judicial eyebrow or rise of a voice at the end of a question may, in reality, be nothing more than a tic or a frog in the throat. Ditto for the questions the Justices ask. They ask questions for their own reasons, or sometimes I’m sure, for the other justices’ needs. Questions, facial expressions and tones of voice do not Supreme Court rulings make.

Having cautioned you — and myself — with all this, I have to admit that what the press is saying about the Supreme Court hearings on Prop 8 today seems to reflect what I’ve been saying all along: Do they really want to jump in there and take the authority to make this decision on themselves? Would they be pushing the country over a cliff? Wouldn’t it be wiser, more honest, and frankly, more in keeping with the Constitutional authority vested in the Court, to let the people continue to work this out through the electoral process?

After all, it is working. 

Tomorrow, the Court will hear arguments on the Defense of Marriage Act. While DOMA is important, Proposition 8 is the big one. The reason I say that is because Prop 8 is the question that opens the door for the Court to take the powers which have heretofore been vested in the states onto itself. 

These decisions, and the possible fall-out from them, hang like the Sword of Damocles over this nation. Will the Court be wise and let the people speak, or will it be foolish and thrust this country over the culture war cliff altogether?

From the Chicago Tribune:

It was the first of two days of argument. On Wednesday, the court will consider the 1996 federal Defense of Marriage Act (DOMA), which denies federal benefits to married same-sex couples. Rulings in both cases are expected by the end of June.

The narrower DOMA case does not give the court the same opportunity to issue a broad ruling because the case relates only to a federal law that limits the definition of marriage to opposite-sex couples for the purposes of federal benefits.

Only the California Proposition 8 case gave the court the option of finding a constitutional right for same-sex couples to marry. Polls show growing support among Americans for gay marriage.

But during the argument, Justice Anthony Kennedy, who is considered a swing vote, raised concerns about the court entering “uncharted waters” on an issue that divides the states.

Kennedy even raised the prospect of the court dismissing the case, a relatively unusual move that would leave intact a federal appeals court ruling that had earlier struck down the California law, known as Proposition 8.

In a similar vein, Justice Samuel Alito also urged caution, noting that gay marriage, as a concept, is “newer than cellphones and the Internet.”

None of the justices indicated support for the Obama administration’s favored solution, which would strike down Proposition 8 and require the eight states that already recognize civil unions or domestic partnerships to allow gays and lesbians to marry. (Read more.) 

Holy Week, March for Marriage and Two Days with the Supremes

Priests processing for chrism mass

Priests processing for Chrism Mass

This is Holy Week.

It is also the week in which the United States Supreme Court will hear arguments on Proposition 8 and DOMA. The potential is there for a major change in the way American law defines marriage. This could have far-reaching effects which none of us can predict for foresee.

What better week to issue a call to prayer than Holy Week? Tuesday is the day we have the Chrism Mass. Priests renew their vows at this mass and the holy oils which will be used throughout the upcoming year are blessed. It’s a beautiful mass and I urge anyone who can to attend.

Blessing of the oil

Blessing the oil

History is coming at us so fast it’s hard to keep up. But we need to remember that this week, above all weeks, is a time for extra prayer and penance. I don’t want to make too much of it, but it seems poignant that so many points of history are converging on this one week. Proponents of traditional marriage are also staging a march in Washington, DC on Tuesday. 

The cross, which defines this week and the life of the world, is not just a point of history. It is history. The cross is the fulcrum of all history. There was the world before the cross and the world after it, which is to say that there was the world without hope and the world without despair.  Despair is impossible to anyone who understands the power of the cross.

We suffer in this life. We experience loss, setbacks, pain, loneliness, failure and grief. But we are never without hope because our hope is in the One who died for us on Calvary.

We need to pray this week, and not just for ourselves and our families, but for all the world that this light of Christ will shine in the darkness of the human heart everywhere.

This article, by our brothers and sisters at The Baptist Press, has details of the upcoming arguments before the Supreme Court:

NASHVILLE (BP) — On Tuesday and Wednesday, the United States Supreme Court will hear arguments in two cases regarding the issue of same-sex marriage. Few issues rise to this level of importance. 

These two cases will do much to answer the question for how marriage is going to be viewed in the United States for the foreseeable future. On Tuesday, the court will hear arguments in Hollingsworth v. Perry (Prop. 8). In this case, the court is being asked to decide the fate of Proposition 8 in California. At stake is whether or not the people of California can define marriage in their constitution as only the union of one man and one woman. In a worst-case scenario in deciding Hollingsworth, the court could rule unconstitutional the definition of marriage as only the union of one man and one woman, repudiating two and a quarter centuries of American jurisprudence in which marriage has been defined and regulated by each state, not the federal courts. Every state that has passed such laws would be affected. It would also be going against several millennia of the Judeo-Christian definition of marriage.

On Wednesday, the court will hear arguments in United States v. Windsor. That case deals with the constitutionality of section three of the Defense of Marriage Act (DOMA). The Windsor case creates the possibility that the court could overturn DOMA in its entirety. DOMA is important at many levels. For one, it protects states that do not support same-sex marriage from being required to recognize same-sex marriages that have been performed in states where the practice is legal. For another, it provides a standard definition of marriage for all federal programs, assuring that only heterosexual marriage is recognized across all federal government programs. It also provides protections for federal workers from being forced to violate their consciences regarding marriage. If DOMA is overturned, military chaplains will be especially vulnerable to pressures to accommodate an expanded definition of marriage in their ministries. (Read the rest here.) 

Obama Asks Court to Overturn Defense of Marriage Act

President Obama weighed in with the Supreme Court today.

He filed an amicus brief asking the court to overturn the federal Defense of Marriage Act. The Federal Defense of Marriage Act (DOMA) of 1996 denies federal recognition of gay marriages and gives each state the right to refuse recognition of same-sex marriage licenses issued by other states. The act does not prohibit states from allowing gay marriages, neither does it obligate states to recognize the gay marriages from other states.

If the court overturns this act, it would make a muddle of marriage laws within and among the states.

Let me try to explain:

Right now, Oklahoma does not have a law allowing same-sex marriage. In fact, Oklahoma has an amendment to the state constitution which defines marriage as between one man and one woman.

If our neighboring state of Texas passes a law redefining marriage as between someone other than a man and a woman, the Federal Defense of Marriage Act would protect Oklahoma’s current law. Oklahoma would not be obliged to honor Texas’ law.

If this act is overturned by the Supreme Court, the question of what Oklahoma must do in this situation would be up in the air. Unless, of course, the Court follows writes its own statutes (calling them Constitutional interpretations) to enforce its own decision. This is what the Court did with Roe v Wade and subsequent rulings on abortion.

The other effect of overturning DOMA would be that it would allow the federal government to put itself in the marriage regulation business. From what I have seen of this president, you’d better get hold of yourself if this happens, because it’s going to be sweeping, heavy-handed and against the religious freedom of practicing Christians and Christian churches.

A FoxNews article discussing Obama’s brief to the Supreme Court on Doma says in part:

The Obama administration is asking the Supreme Court to strike down the federal law defining marriage as a union between only a man and a woman.
The request regarding the 1996 Defense of Marriage Act was made Friday in a brief by Solicitor General Donald Verrilli that argues the law is unconstitutional because it violates “the fundamental guarantee of equal protection.”
The high court is set to hear two cases next month on the issue: the constitutional challenge on Proposition 8, the 2008 California that allowed same-sex marriages in the state that two years later was overturned, and United States v. Windsor, which challenges DOMA.
Edith Windsor, a California resident, was married to her female partner in Canada in 2007 but was required to pay roughly $360,000 in federal estate taxes because the marriage is not recognized under DOMA.
The law “denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples,” Verrilli’s brief in part states.
House Republicans also purportedly filed a brief Friday, arguing for the right to defend DOMA.

Read more: http://www.foxnews.com/politics/2013/02/23/obama-considers-weighing-in-on-gay-marriage-case/#ixzz2Lk7tlaUf

If you wish to read the President’s brief to the Supreme Court against DOMA, go here.

The Supreme Court Should Leave Marriage Alone

Same-sex marriage is a compelling issue for many people on both sides of the question. Public support for traditional marriage eroded rapidly in the past two years, while nationwide support for same-sex marriage is at an all-time high.

For the first time, several states have passed voter referendums allowing same sex marriage, politicians are moving to endorse same-sex marriage and there’s even talk about whether or not conservative Christians and the Republican Party should abandon opposition to it.

Meanwhile, lower courts have struck down the federal Defense of Marriage Act and Proposition 8, both of which were designed to protect traditional marriage.

It is at this juncture that the United States Supreme Court has announced that it will hear challenges to these lower court rulings on DOMA and Proposition 8. Since lower courts had struck down the two laws, the Supreme Court could have allowed those rulings to stand by simply not hearing the challenges. For this reason, many people who favor traditional marriage, including those quoted in the CNA/EWTN article excerpted below, are hopeful about what the eventual Supreme Court ruling might mean. At the same time, supporters of same-sex marriage are voicing concerns that the Supreme Court might overturn lower court rulings and let the laws stand.

I believe it would be a mistake for the Supreme Court to step in at this juncture and federalize marriage. I also think it would be a mistake to define homosexual people as a protected class under the 14th Amendment. I would have this opinion even if I supported same-sex marriage.

It appears to me that the people of this country are in the process of working through a decision on this issue of their own and they are using the ballot box to do it. Even though I do not support same-sex marriage, I know that the voters in the states who legalized it this fall were acting within their rights to do so. I also believe that this is almost always the best way for social change to come about.

My answer to the question of defining homosexual people as a protected class of citizens under the 14th Amendment, is that I do not think this is necessary. Discrimination against homosexuals is rapidly going away without this drastic measure and all its unintended consequences.

One of the most damaging decisions the Supreme Court ever made was in a situation analogous to this one. Roe v Wade came at a time when the various states were liberalizing their abortion laws and public support for legal abortion was on the ascendant. By stepping in and federalizing something that had always been under the control of the states, the Court stopped this normal Democratic process in mid act. What happened instead is that the Court, rather than ending the discussion, radicalized it and set this country on a destructive course of increasingly polarized public debate and politics which continues to this day.

Of course, my opinion about what the Court should do doesn’t mean a thing, just as the opinions of both those who favor same-sex marriage and those who oppose it don’t mean a thing. The question about these two laws is now in the hands of seven people and they can do pretty much whatever they want with it. The Court has the freedom to rule in a narrow fashion that only affects these two statutes, or it can make a whole new Constitutional definition of marriage in whatever fashion four of these seven people want.

We the people have very little to say about what happens at the Supreme Court. And that is why I think that everyone on both sides of this debate should hope that they don’t go off on a law-making binge. I hope that they rule narrowly instead.

The CNA/EWTN article discussing reactions of traditional marriage supporters to the Court’s decision to hear these two cases reads in part:

Washington D.C., Dec 7, 2012 / 04:13 pm (CNA/EWTN News).- Supporters of marriage and family welcomed the Supreme Court’s announcement that it will review both state and federal cases about the definition of marriage in the coming months.

“The U.S. Supreme Court’s decision to hear these cases is a significant moment for our nation,” said Archbishop Salvatore J. Cordileone of San Francisco, who leads the U.S. bishops’ Subcommittee for the Promotion and Defense of Marriage.

“Marriage is the foundation of a just society, as it protects the most vulnerable among us, children,” he said in a Dec. 7 statement. “It is the only institution that unites children with their mothers and fathers together.”

The archbishop said that he is praying that the court will be “guided by truth and justice” in order to affirm the true meaning and purpose of marriage, written in human nature as the union of one man and one woman.

On Dec. 7, the U.S. Supreme Court announced that it will hear two cases regarding the definition of marriage in the next year.

A federal case, Windsor v. United States, involves a challenge to the Defense of Marriage Act, a 1996 law passed with overwhelming bilateral support in Congress and signed by President Bill Clinton. The case challenges a section of the law that defines marriage as the union of one man and one woman for federal policies.

A second case, Hollingsworth v. Perry, concerns Proposition 8, a constitutional amendment adopted by California voters in 2008 to protect the definition of marriage as the union of one man and one woman after the state Supreme Court ruled that gay unions must be recognized as marriages.

Critics of the laws argue that they amount to unjust discrimination against gay couples and an unconstitutional violation of the equal protection clause. Proponents contend that the government has a legitimate interest in recognizing the union of man and woman because it is the fundamental building block of society and plays a critical role in bringing up the next generation.

While lower courts have struck down both laws, marriage advocates say they see hope in a Supreme Court ruling. (Read more here.)

Supreme Court to Hear Gay Marriage Cases

The United States Supreme Court announced earlier today that it will hear two cases concerning gay marriage.

Whenever a case makes its way to the Supreme Court, the court decides whether or not it will hear the case or let the lower court ruling stand. In these two cases concerning the federal Defense of Marriage Act and Proposition 8, which was a ban on gay marriage that passed in California a few years ago, the Supreme Court has decided that it will hold hearings on the cases and issue a ruling of its own.

While many people are already second-guessing what the Court might do regarding these two laws, I don’t think that’s particularly useful. The Court has always been unpredictable and could be this time, as well. We will have to wait and see what ruling they hand down later this year.

A Yahoo News article concerning today’s announcement reads in part:

The Supreme Court announced Friday that it will decide two major gay marriage cases next year that could have a sweeping impact on the rights of same-sex couples to wed. The cases, which likely won’t be decided until June, mark the first time the justices will consider arguments for and against same-sex marriage.

The court will review California’s gay marriage ban, which passed in a 2008 ballot initiative months after the California’s high court had legalized same sex unions and thousands of gay Californians had already tied the knot. Two federal courts have struck down Prop. 8 as discriminatory, leaving the Supreme Court to render a final judgment.

The justices will also hear a challenge to the federal Defense of Marriage Act, a law passed under President Bill Clinton that prevents the federal government from recognizing gay marriages. Windsor v. United States was brought by Edith Windsor, a resident of New York who paid $363,000 in estate taxes after her wife died because the federal government did not recognize their marriage. New York is one of nine states (and the District of Columbia) where gay marriage is legal, so Windsor argues that the federal government is discriminating against her by not recognizing her state-sanctioned marriage.

The Obama administration decided last year to no longer defend the Defense of Marriage Act, so Congress has hired outside counsel to argue on behalf of the law. Recently, two federal appeals courts had struck down the law as unconstitutional, virtually requiring the Supreme Court to take the case to settle the dispute between the courts and Congress. (Read more here.)

Supreme Court Will Decide Whether to Hear Gay Marriage Cases Tomorrow

WASHINGTON (BP) — The nine justices of the U.S. Supreme Court will meet behind closed doors Friday to decide whether to take up several cases that could lead to the legalization of gay marriage in all 50 states.

The public won’t find out what they decided for several days — as early as Monday — but Friday’s meeting is significant enough that both sides in the cultural debate are guessing what will happen. If the court takes up the cases, it could end up being the “Roe v. Wade” of gay marriage.

At issue are two laws: a federal law known as the Defense of Marriage Act (DOMA) and a California constitutional amendment known as Proposition 8.

Technically, only one section of DOMA is before the court — the section that defines marriage in federal law as being between one man and one woman. But the legal arguments the Obama administration’s Justice Department attorneys are using to oppose that section could be used to overturn the entire law, conservative attorneys say. That other section gives states the option of not recognizing gay marriage laws from other states. Courts have been split on DOMA, although the cases before the high court overturned the federal section at issue. The Republican-controlled House of Representatives is defending DOMA in court.

California Prop 8 was approved by voters in 2008 and defines marriage as between a man and a woman. The Ninth Circuit Court of Appeals affirmed a lower court ruling that struck it down. If the Supreme Court takes the Prop 8 case, it could do a number of things, including upholding Prop 8 or — in what would be a nightmare for Christian legal groups and evangelicals — reversing laws in any state that define marriage as between a man and a woman. The court also could choose not to take the Prop 8 case, a decision which would legalize gay marriage in California. (Read more here.)

Compiled by Michael Foust, associate editor of Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress ) and in your email (baptistpress.com/SubscribeBP.asp).


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