In a 5-4 ruling, the Supreme Court has held section 3 of the Defense of Marriage Act to be unconstitutional, ruling on equal-protection grounds. The section in question denied federal benefits to same-sex coupled married in states that permit such marriages – a possibility that was essentially hypothetical at the time DOMA was signed into law by President Bill Clinton, but there are now a dozen states with gay marriage laws, plus the District of Columbia… and presumably now California, whose Proposition 8 banning gay marriage was passed by the people, but effectively nullified by state courts and the government. The Supreme Court decided not to hear a case that would have enforced Prop. 8 in California, ruling that the plaintiffs did not have proper standing.
Some who supported the goals of DOMA were nevertheless troubled by the points Justice Anthony Kennedy raised in his majority opinion:
The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. 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.
There have long been concerns that DOMA would be struck down on these grounds. Marriage is a very portable institution. A couple married in one state may easily move to another, while federal law makes distinctions for married couples in numerous ways. Writing at the Ace of Spades blog, Gabriel Malor compiled a quick list of consequences from the demise of DOMA Section 3: “Gay spouses may now file joint taxes, may donate jointly, may petition for legal residence for non-citizen spouses, may now obtain changes to their passports (married name corrections) the same as straight spouses. Military gay spouses are now entitled to the same survivor, housing, PX, and travel benefits as straight spouses.”
That’s why supporters of DOMA thought it was necessary: because a few states could legalize gay marriage, and then spread their decision to other, resisting states through the power of the federal government. It’s also the reason opponents thought DOMA was vulnerable on Constitutional grounds. Combined with the Court’s refusal to hear the Proposition 8 case from California, it’s a big strategic victory for same-sex marriage, which is an aggressive change to the existing social order. There is no comparable way for defenders of that order to spread their influence in such a viral fashion; a state that outlaws same-sex marriage cannot transmit its preference through the federal network.
The dissenting justices were Antonin Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts. Justice Scalia thought the Supreme Court should not have decided the case, writing that the Supreme Court should have no power to invalidate the “democratically adopted” Defense of Marriage Act. Doing so was a “jaw-dropping” assertion of “judicial supremacy over the people’s representatives in Congress and the Executive.” His dissent was absolutely blistering:
The Court is eager???hungry???to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges??? intrusion into their lives. They gave judges, in Article III, only the ???judicial Power,??? a power to decide not abstract questions but real, concrete ???Cases??? and ???Controversies.??? Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?
Justice Scalia is here referring to the case that reached the Supreme Court, in which the widow in a New York same-sex marriage, Edith Windsor, was sent an enormous estate-tax bill by the IRS. Windsor argued that she would not have been required to pay this bill if the Defense of Marriage Act didn’t prevent her from being recognized as a spouse under federal law. The Obama Administration did not stand up to defend the law under challenge, so in essence the government and the plaintiff came before the Supreme Court to receive its official blessing on something they already agreed upon. Scalia saw this as an appalling use of Supreme Court power to overturn a law duly passed by Congress and signed by a previous President. He also doesn’t think the Supreme Court should be in the business of re-defining marriage, and he doesn’t like the way the majority built unflattering opinions about the supporters of traditional marriage into its ruling. He expounds on this at great length in his dissenting opinion, which can be read in full here.
Maggie Gallagher, who writes frequently on marriage and is a fellow at the American Principles Project, wondered how far this new standard for overturning democracy will be taken:
Justice Kennedy has invented a new standard of ???heightened scrutiny??? for laws which are new or unusual???that is to say most new laws: ???DOMA???s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages.??? Kennedy unfairly and illegitimately makes ???custom??? and ???tradition??? a sufficient reason to overturn the democratic branch of government???a standard which has never been applied when Congress passes new laws that affirm new leftist values.
Kennedy???s decision is not law, it is Justice Kennedy???s moral values written into our Constitution, and interfering with our rights as Americans to pass laws that accord with our values on marriage. Kennedy???s decision is the Roe v. Wade of this generation, not this generation???s Brown v. the Board of Education. Like Roe, Kennedy stepped in to disenfranchise millions of voters??? concerns to tilt unfairly the scale of justice controversial moral issue trending in a liberal direction. But like Roe the deep questions involved in marriage will not simply go away: At the heart of the gay marriage argument is an untruth: unions of two men or women are not the same as unions of husband and wife. The law cannot make it so, it can only require us to paint pretty pictures to cover up deep truths embedded in human nature.
Today’s decisions didn’t impose same-sex marriage from coast to coast, but as the celebrating proponents of SSM would be happy to tell you, they’ve greatly diminished the options available to dissenters through representative democracy and federalism. The Defense of Marriage Act didn’t outlaw same-sex marriage; it prevented the federal government from recognizing it, in ways that would inevitably affect people in states that did not authorize it.
So… where do you go to vote against gay marriage now? Proponents of same-sex marriage may be pleased that the answer is, increasingly, “you can’t.” Perhaps they should be a bit more worried about what else the American people will be told they’re not allowed to vote against. Lots of other groups believe they have causes nobody can disagree with in good faith.