UPDATED: Supreme Court Marriage Decisions: DOMA Overturned; Prop 8 Dismissed

UPDATE: Scroll down to the update for links to the decisions and excerpts from the cases. In short, DOMA has been overturned and Prop 8 was dismissed based on lack of standing of those bringing the case.

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Today, the Supreme Court hands down decisions in two cases which address gay marriage.  One, Hollingsworth v. Perry (No. 12-144) decides whether California’s Proposition 8 violates the Constitution. The second case is United States v. Windsor (No. 12-307) in which the court will decide whether a part of the federal Defense of Marriage Act of 1996 violates the Constitution. DOMA defines marriage as “only a legal union between one man and one woman as husband and wife” for the purpose of determining federal benefits.

Yesterday, the court announced that the rest of the court’s decisions would be announced today. Court watchers think the decision will be out sometime around 10am. All eyes will be on the decision, and, like a lot of blogs and news sources, I will post links to the decisions and commentary about them.

UPDATE: The DOMA decision is out. DOMA has been overturned on a 5-4 vote. From SCOTUS Blog: “5-4:DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”

DOMA opinion is here: http://www.supremecourt.gov/opinions/12pdf/12-307_g2bh.pdf

From the opinion (25-26)

DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.By seeking to displace this protection and treating those persons as living in marriages less respected than others,the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.

The Prop 8 case may be dismissed based on standing.  From Justice Robert’s dissent:

we hold today that we lack jurisdiction to consider it in the particular context of Hollingsworth v. Perry, ante, p. ___. I write only to highlight the limits of the majority’s holding andreasoning today, lest its opinion be taken to resolve notonly a question that I believe is not properly before us—DOMA’s constitutionality—but also a question that all agree, and the Court explicitly acknowledges, is not at issue.

According to Amy Howe at the SCOTUS Blog,

What this means, in plain terms, is that same-sex couples who are legally married will be entitled to equal treatment under federal law– with regard to, for example, income taxes and Social Security benefits.
Now the Prop 8 case:
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 here.
From Hollingsworth v. Perry (pg. 3):
No matter how deeply committed petitioners may be to upholding Proposition 8, that is not a particularized interest sufficient to create a case or controversy under Article III.
From the SCOTUS Blog:
Same-sex marriage will be available in CA, at least where court clerks take the position that Prop 8 is unconstitutional.
This post, written in anticipation of various possible outcomes, lays out the issues now.

 

  • stephen

    My fingers are crossed.

  • ken

    yes, I’m very curious how they will rule. I predict they will strike down DOMA outright, but on the CA case will just uphold the appellate court ruling that says it is unconstitutional to take the right away, so it only applies to CA.

    I certainly hope they don’t try to avoid it by denying standing in the case(s).

    The DOMA decision will likely have immediate repercussions in a Kentucky case right now. A same-sex spouse is asserting spousal privilege which KY is denying because they don’t recognize same-sex marriage.

  • ken

    I’m a bit disappointed by the Prop 8 ruling in that that it undercuts citizens abilitiy to defend referendums if the State refuses to do so. It gives the States a back door veto power over referendums it doesn’t like.

    On the other hand embedded in the Prop 8 ruling is an acknowledgement by the court that same-sex marriage has no effect on opposite-sex marriage.

    • Ford

      I feel exactly the same way about the prop 8 decision.

  • david blakeslee

    Powerful, by Kennedy:

    In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century.

    Alito calls for humility:

    Alito also writes that the issue of same-sex marriage is so new to the country, there is no knowing of the broader implications of allowing such an institution, citing the “ancient and universal human institution” of family.” The justice made a similiar point during oral arguments for the case in March.

    “At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are certainly not equipped to make such an assessment

    • ken

      And Scalia was just off the wall. Most of his dissent was just him complaining about the majority (rather than arguing why DOMA should be upheld). He dissent comes across as a child throwing a temper-tantrum because he didn’t get his way, rather than a proper dissent from a SCOTUS justice.

    • Mary

      There once was a law that prevented Chinese citizens (of the United States) from owning too much property. that was the will of the people, voted upon and agreed upon. It doesn’t make it right.

      • Frank

        Mary, after the Civil Rights Act of 1964, the citizens of California voted to amend their constitution to make racial discrimination legal in the sale of real estate. The court voided the will of the ignorant then, too.

        In San Diego, a campus of the University of California was founded purely as a graduate and scientific research campus. The campus is UCSD in La Jolla, which was then an “exclusive” neighborhood. The faculty search committee was told that there is no such thing as a first-rate scientific institution without Jewish professors. Nearly all the leading physicists and mathematicians on the Manhattan Project were Hungarian Jews who went to the same high school.

        BTW, that “gentlemen’s agreement” to keep Jews from buying real estate in La Jolla was voided well in advance of the civil rights act of 1964.

  • Scotty G.

    I wonder when interracial marriage ceased to be ‘new’ and at what point does same-sex marriage become ‘old’? 1 year? 10 years? 100?

    “I have yet many things to tell you, but you can’t bear them now.” – John 16:12

    A slave trading society wasn’t ready for Christ’s revelation that owning another human being was sinful.

    A patriarch society wasn’t ready for Christ’s revelation that women could lead in the spiritual welfare of a congregation.

    A segregated society wasn’t ready for Christ’s revelation that human dignity is for everyone.

    Are we ever fully prepared for Christ’s revelations?

    And thank God the Samaritan didn’t calculate the costs of helping a person in need.

    “The next day the Samaritan took out two denarii and gave them to the innkeeper. ‘Look after him,’ he said, ‘and when I return, I will reimburse you for any extra expense you may have.” – Luke 10:35

    Finally, I am reminded of Lord Jenkins’ addressing the House of Lords:

    “I have come to the firm conclusion that there is nothing to fear in gay marriage and that, indeed, it will be a positive good not just for same-gender unions but for the institution of marriage generally. The effect will be to put right at the centre of marriage the concept of a stable, loving relationship. As a practicing Christian, perhaps I may make the point to the Bishops’ Benches, including to the most reverend Primate, that there is every reason why, in time, the Anglican Church should come to accept that, although I recognize that it may take some time. The character of love which marriage reflects—that it is faithful, stable, tough, unselfish and unconditional—is the same character that most Christians see in the love of God. Marriage is therefore holy, not because it is ordained by God, but because it reflects that most important central truth of our religion: the love of God for all of us.”

  • ken

    Re: Prop 8 ruling.

    It occurs to me there is another unintended consequence of rejecting standing in the case. In ruling there was no standing, the SCOTUS threw out the Ninth Circuits ruling:

    The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.

    However, the Ninth Circuit ruling actually limited Walker’s ruling. The Ninth was the court that ruled it is unconstitutional to give a right (to marriage) then take it away. Walker ruled that denying same-sex marriage was unconstitutional. So unless I’m missing something that should mean that denying gay marriage is not allowed in anywhere in the 9th district (AK, Az, CA, HI, OR, NV, WA).

  • stephen

    Scotty, as a married man myself I can tell you that same-sex marriage is already old. Living as we do in a very rural part of upstate NY everyone we come in contact with is completely unfazed by the fact of our same-sex marriage. I was at the vet today, went to the gym, and did some shopping. Not one person I met was aware of what was going on because this is an issue that affects no one except those directly involved. That was true in the past and will be true as we go forward.

    It’s been a happy day. Not even Alito parroting the absurd talking-points of NOM can put a damper on it (Distressing to find a justice who finds gay people so toxic). I’ve been thinking of Alan Chambers’s example and thinking now might be a good time for Maggie Gallagher, Robby George, Brian Brown, and all the rest of the gang at NOM, to shut down the organization and devote their energies in helping us break down the last impediments to real equality – too many still remain. It would be the decent thing to do. God knows the anti-gay industry, which often cross-pollinates with the ex-gay industry, has raised perhaps hundreds of millions as they inserted themselves into our lives. Would be nice to see them give something back.

  • StraightGrandmother

    Brain Brown as President of NOM makes $250,000 a year. I doubt he is going to “shut it down” Stephen.

    There is money to be made in Hate.

    • ken

      Given that Brown said:

      I’m furious. We at the National Organization for Marriage (NOM) and tens of millions of other Americans will never accept it.

      shortly after the decisions came out I suspect you are right about NOM not closing down anytime soon.

      I found Tony Perkins’ (of FRC) comment pretty amusing as well:

      “Their refusal to redefine marriage for all states is a major setback for those seeking to redefine natural marriage,” said Family Research Council President Tony Perkins. “Time is not on the side of those seeking to create same-sex ‘marriage.’”

      I’m thinking Perkins is having a little trouble dealing with reality here.

  • Richard Willmer

    A little aside …

    As debate rages on the meaning of ‘marriage’, I was somewhat amused to hear, as the first reading at today’s Mass, Genesis 16 : 1 – 12, 15, 16. Makes one wonder what a ‘biblical’ understanding of ‘marriage’ might actually entail!

    I was then pulled up short by one of the passages, from the Holy Gospel, that really does bring me to a place of ‘fear and trembling’: + Matthew 7 : 21 – 29.

  • stephen

    SG. I think he actually makes upwards of $500,000 a year from NOM. He receives two salaries. One for activism and the other for teaching. I think that’s right. And let’s not forget Frank Schubert who made over $3M in the space of a couple of years. Maggie Gallagher is down to a mere $160,000.

    And yes, how much they pay themselves does matters. It’s not called the anti-gay industrial complex for nothing.

  • Zoe Brain

    5-4 to say that DOMA was unconstitutional.

    Jeez Louise, what more evidence is required that the SCOTUS is hopelessly politicised. It should have been a 7:0 slam-dunk.

    “At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.”

    (Roberts, C.J. dissent, p2, on p32)

    One only has to read the Congressional Record. It’s quite explicit.

    The House Judiciary Committee stated that the Act was intended by Congress to “reflect and honor a collective moral judgment and to express moral disapproval of homosexuality.”

    In opposition to the bill, Colorado Rep. Patricia Schroeder said, “You can’t amend the Constitution with a statute. Everybody knows that. This is just stirring the political waters and seeing what hate you can unleash.”


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