The Supreme Court on DOMA and Prop 8 and The Future of Marriage
We must accept finite disappointment, but never lose infinite hope. — Martin Luther King
Today, the Supreme Court of the United States (SCOTUS) ruled on two significant cases that will forever impact the culture and the law in the United States. After reading both decisions, here are my conclusions.
The first ruling today dealt with the 1996 Federal Defense of Marriage Act through the case “UNITED STATES v. EDITH SCHLAIN WINDSOR”. Under consideration was DOMA’s Section 3 and the question, “does the Federal government have the legal standing to ‘impose’ its definition of marriage on the States?”
In short, today’s ruling was “no” The Federal government does not have standing to impose a Federal definition of marriage on the States. This is exactly what I predicted in March of this year when I wrote:
I think the Justices will strike down Section 3 of Doma as a violation of States rights. This will be a mixed win for both Liberal and Conservatives.
The Liberals will be happy that gay marriage laws will be upheld in the 9 states who have already passed laws (and once again valid in California).
The Conservatives will be happy that traditional marriage will not be defined as “discrimination” and this should also preclude the Supreme Court from supporting future Federal law that redefines marriage.
Ultimately, the debate will go back to all 50 States and we will spend the next decade fighting political battles and passing laws to support one view or the other. Get ready because this is going to get worse before it gets better.
Prop 8 Ruling
The second ruling today was over the case “DENNIS HOLLINGSWORTH, ET AL., Petitioners v. KRISTIN M. PERRY, ET AL” which addressed the legality of Proposition 8, approved by California voters in 2008 that amended the CA constitution and define marriage as between one man and one woman.
Once again, my March prediction was accurate.
I believe the court will not make a decision on the constitutionality of Prop 8. Instead, because Gov. Jerry Brown (D) and Attorney General Kamala Harris refused to defend the law passed by the people of California I believe the court will rule that there is no standing and send the case back to CA. If this happens, Prop 8 will be nullified and gay marriage will again be legal for Californians.
But the most devastating part of the Supreme Court decision is its ruling that the voters do not have a legal standing in Federal court to protect their Propositions from activist politicians. Justice Roberts writing for the majority opinion in “Hollingswroth v. Perry” states:
In other words, for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm. “The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III’s requirements.” Diamond, supra, at 62. (6)
I could not disagree more. To suggest that the California voter has no standing to protect their rights against the State is a grievous injustice. As I said in March:
If the court rejects the case on standing, this will effectively cede power to the Politicians and diminish the voters’ voice in all future propositions.
We cannot let the issue of “gay marriage” blind us to the destructive consequences of this decision. In California, when politicians fail to act, the people have a constitutional right to pass laws by direct vote. In the past, this obligated the politicians to stand with the people and defend the laws they voted on. Now, politicians have the power to ignore any and all propositions and refuse to enforce the will of the people and the people of California will have absolutely no legal redress from our Federal government.
There may be, however tiny, one small glimmer of hope for the California voter. It comes early on in Justice Robert’s majority opinion. He writes,
For there to be such a case or controversy, it is not enough that the party invoking the power of the court have a keen interest in the issue. That party must also have “standing,” which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit. (2, emphasis mine.)
What does Roberts mean in saying the Ninth Circuit does not have standing to decide the case?
If, by this, Roberts means that the Ninth Circuit does not have the legal authority to grant the voter standing to protect their vote (see pg. 12 of Justice Roberts decision), then there is no hope for the California citizen that their voice will be respected by politicians.
If, however, this comment implies that the California Supreme Court does not have standing to reject Prop 8, then the voter’s decision to amend the CA constitution and define marriage as the union between a man and woman will stand. I think this interpretation is less likely given the context of Robert’s opinion, but it may also mean that this legal battle is not over. Time will tell.
In reading both cases, I am convinced my earlier assessments of both DOMA (read here) & Prop 8 (read here) are still accurate in that the real issues go beyond the legality of gay marriage. The cultural, ethical, and moral implications are much more important than either of these rulings.
The Creation Of A Genderless Society
Justice Alito in his dissenting opinion on “US v. Windsor” writes:
In asking the Court to determine that §3 of DOMA is subject to and violates heightened scrutiny, Windsor and the United States thus ask us to rule that the presence of two members of the opposite sex is as rationally related to marriage as white skin is to voting or a Y-chromosome is to the ability to administer an estate. That is a striking request and one that unelected judges should pause before granting. Acceptance of the argument would cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools (13).
This seems like the road we are on where anyone who holds the traditional Christian view (ie. God created male and female and that marriage is between those two sexes) will face legal discrimination. Why? Because this case demands that we redefine marriage as an institution of “consent” over an institution of “purpose”. As Justice Alito writes,
Yet, Windsor and the United States implicitly ask us to endorse the consent-based
view of marriage and to reject the traditional view, thereby arrogating to ourselves the power to decide a question that philosophers, historians, social scientists, and theologians are better qualified to explore (14).
As the Heritage Foundation has already documented, religious discrimination is already a reality in many states…
Redefining marriage marginalizes those with traditional views and leads to the erosion of religious liberty. The law and culture will seek to eradicate such views through economic, social, and legal pressure. If marriage is redefined, believing what virtually every human society once believed about marriage—that it is a union of a man and woman ordered to procreation and family life—would be seen increasingly as a malicious prejudice to be driven to the margins of culture. The consequences for religious believers are becoming apparent.
For example, after Massachusetts redefined marriage to include same-sex relationships, Catholic Charities of Boston was forced to discontinue its adoption services rather than place children with same-sex couples against its principles. Massachusetts public schools began teaching grade-school students about same-sex marriage, defending their decision because they are “committed to teaching about the world they live in, and in Massachusetts same-sex marriage is legal.” A Massachusetts appellate court ruled that parents have no right to exempt their children from these classes.
In fact, the Becket Fund for Religious Liberty reports that “over 350 separate state anti-discrimination provisions would likely be triggered by recognition of same-sex marriage.”
Armed with today’s Supreme Court decisions, the legal attack against Christians from those who seek a Genderless Society will only continue to rise.
The Creation Of A Political Oligarchy
What do both of these cases have in common? In both instances, politicians from the Executive branch unilaterally decided they would no longer defend the laws as established by the people and they would become de-facto “Conscientious Objectors” by not defending laws they personally dislike. Justice Kennedy implicitly acknowledges this in his majority opinion from “US v. Windsor”.
While the tax refund suit was pending, the Attorney General of the United States notified the Speaker of the House of Representatives, pursuant to 28 U. S. C. §530D, that the Department of Justice would no longer defend the constitutionality of DOMA’s §3 (3)
In essence, both of these cases are important to every American because President Obama and Gov. Brown of California chose to function as political activists rather than uphold their oaths to execute and defend the law. And while today this serves the gay agenda; tomorrow it harms every American. These rulings establish politicians as a ruling Oligarchy who place their personal views above the law. This will not end well for anyone as the rule of law is replaced by political power.
“But be on your guard. For they will deliver you over to councils, and you will be beaten in synagogues, and you will stand before governors and kings for my sake, to bear witness before them. And the gospel must first be proclaimed to all nations. And when they bring you to trial and deliver you over, do not be anxious beforehand what you are to say, but say whatever is given you in that hour, for it is not you who speak, but the Holy Spirit. And brother will deliver brother over to death, and the father his child, and children will rise against parents and have them put to death. And you will be hated by all for my name’s sake. But the one who endures to the end will be saved.