Walter Beck examines the reaction to the U.S. Supreme Court’s ruling that spells the end for DOMA and Prop 8.
It was 10:02 AM when the news finally popped up on the Supreme Court blog wire, “5-4 per Kennedy”. It was official, the Defense of Marriage Act had been struck down as unconstitutional by the Supreme Court; it was a victory we had been waiting for since DOMA was signed into law in 1996. Immediately, the wires went hot as people wept tears of joy and hoisted their Pride flags high. Twenty minutes later, the verdict was in for California’s Proposition 8, the Court found a lack of standing and remanded the case to the Ninth Circuit with an order for dismissal, making marriage equality legal again in the state of California.
I wept over the news; we were one big step forward to being equal citizens in the United States. I called my brother in for a toast; we cracked a magnum of Cook’s Moscato California Champagne and drank deeply, joyous in our victory.
One of my buddies didn’t waste any time, and announced his engagement to his boyfriend of ten years mere minutes after the decision had been handed down.
So what does all this mean? The Defense of Marriage Act (DOMA) was signed into law in 1996 by President Bill Clinton,who was under political pressure from the Republicans during an election year. The Act states that the Federal government would not recognize gay couples for the purposes of Federal benefits afforded to married couples. This is underlined in Section 3 of the Act, which reads as follows,
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.
Under DOMA, that meant that a gay couple legally married in New York would not be married under Federal law and would not be able to file taxes jointly, not receive mutual Social Security benefits, and not receive benefits upon the death of the spouse.
As it refers to the specific case regarding the Constitutionality of DOMA, United States v. Windsor, Mrs. Edith Windsor challenged the Act after her wife, Thea Spyr, passed away and she had to pay $363,000 in estate taxes, which she would not have to pay if it involved a heterosexual couple.
California’s Proposition 8 (known as Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment) was passed in November 2008 in reaction to the California State Supreme Court ruling that said gays and lesbians, as a class with a history of prejudice and discrimination, were entitled to strict scrutiny and thus barring LGBT people from marrying was a violation of the California State Constitution.
In response to being denied a marriage license after the passing of Proposition 8, two couples, Kristin Perry and Sandra Stier and Paul Katami and Jeffrey Zarrillo filed suit against the State of California.
In the initial trial, Judge Vaughn Walker ruled in favor of the plaintiffs, finding that Proposition 8 violated the Fourteenth Amendment of the United States Constitution, further concluding that the State of California had no rational basis to deny the right of marriage to LGBT couples.
The case was brought to appeal and was heard by the Ninth Circuit Court, which ruled 2-1 in favor of the plaintiffs, finding that the sole purpose of Proposition 8 was to strip away the right of marriage from LGBT couples, a right they had previously enjoyed.
The decisions were handed down on June 26, 2013. With Windsor v. United States, in a 5-4 ruling, read by Justice Kennedy, joined by Ginsburg, Breyer, Sotomayer, and Kagan, the Court ruled that “DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment”, the Fifth Amendment reading,
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In further explanation of the majority ruling, the Court found,
“The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528, 534–535. DOMA cannot survive under these principles. It’s unusual deviation from the tradition of recognizing and accepting state definitions of marriage operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of a class recognized and protected by state law. DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States”.
Amongst the Justices that dissented, Justice Scalia’s dissent was the most surprising. Rather than denying the rights of LGBT couples to marry, Scalia’s opinion was that since the two parties agreed on the outcome of the case, since the US Justice Department refused to defend DOMA in court, there was no controversy and thus no jurisdiction for the Court to rule. As he wrote in part, “I think that this Court has, and the Court of Appeals had, no power to decide this suit. We should vacate the decision below and remand to the Court of Appeals for the Second Circuit, with instructions to dismiss the appeal.”
Further in his opinion, he highlights the fact that while DOMA has been struck down as unconstitutional, the ruling applies only to those states with marriage equality already on the books and does not extend those rights to couples in states without marriage equality, “The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality.”
Concluding his dissent, Scalia speaks powerfully, “But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.”
The decision in Hollingsworth v. Perry came off the wire at 10:26 AM, with Chief Justice Roberts reading for the majority. The Court held 5-4 that the petitioners in the case had no standing per Article III of the Constitution as the State of California’s only interest was to uphold the Constitutionality of Proposition 8. As the Court decided, “As this Court has repeatedly held, such a “generalized grievance”—no matter how sincere—is insufficient to confer standing.” Continuing the opinion of lack of standing, the Court concluded,
The Court does not question California’s sovereign right to maintain an initiative process, or the right of initiative proponents to defend their initiatives in California courts. But standing in federal court is a question of federal law, not state law. No matter its reasons, the fact that a State thinks a private party should have standing to seek relief for a generalized grievance cannot override this Court’s settled law to the contrary. Article III’s requirement that a party invoking the jurisdiction of a federal court seek relief for a personal, particularized injury serves vital interests going to the role of the Judiciary in the federal system of separated powers. States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse.
Thus, Hollingsworth v. Perry was vacated and remanded back to the State Courts, “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.”
As far as when marriages will resume in California, the Federal Appeals Court has instituted a stay of twenty-five days.
As expected, the reaction of conservatives and the Religious Right to these rulings was monumental, as they gnashed their teeth into news microphones across the country, nearly weeping openly as they saw another blow being delivered to their dwindling political power. Texas Representative Louie Gohmert claimed that America would now suffer the consequences of a Supreme Court that “goes against the laws of nature and nature’s God.”
Representative Tim Huelskamp from Kansas has pledged to revive the Federal Marriage Amendment to circumvent the Supreme Court’s ruling on DOMA, “My response to this will be later this week to file a federal marriage amendment.” He claims to have support from Speaker of the House John Boehner, but Boehner may not be so quick to issue support for such an Amendment, preferring to leave the issue to the states.
Of course, Michele Bachmann, Queen of the Teabaggers, had a statement; “Marriage was created by the hand of God. No man, not even a Supreme Court, can undo what a holy God has instituted. For thousands of years of recorded human history, no society has defended the legal standard of marriage as anything other than between man and woman. Only since 2000 have we seen a redefinition of this foundational unit of society in various nations. Today, the U.S. Supreme Court decided to join the trend, despite the clear will of the people’s representatives through DOMA. What the Court has done will undermine the best interest of children and the best interests of the United States.”
Former Speaker of the House Nancy Pelosi had the best response to Bachmann’s statement, replying “Who cares?”
Reactions from the Religious Right were equally absurd. Richard Land of the Southern Baptist Convention claiming, “Today is a devastating day for traditional marriage and religious freedom.” Fr. Shenan J. Boquet of Human Life International likewise claimed that persecution was yet to come, “We expect that persecution of the Church will increase as opponents of true marriage demand that no dissent be tolerated, and that religious institutions participate in performing ‘marriage’ ceremonies for same-sex couples or suffer charges of discrimination.”
Fox News contributor Todd Starnes stated, “Won’t be long before they outlaw the Bible as hate speech.”
But the epitome of craziness from the Religious Right came today from Bryan Fischer, radio host of the American Family Association, who first claimed that the Supreme Court has turned people such as himself into “second-class citizens” and then doubled down by stating live on the air that the Supreme Court has done to people such as Mr. Fischer, “what the Nazis did to the Jews.”
What we are seeing is the utter breakdown of the Religious Right. The Supreme Court has dealt a fatal blow to their political power and now they will wither away, a curious footnote in the annals of American politics.
President Obama released a statement in favour of the decision, “I applaud the Supreme Court’s decision to strike down the Defense of Marriage Act. This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. We are a people who declared that we are all created equal – and the love we commit to one another must be equal as well.”
Today was a great day, true, we didn’t get the broad, sweeping ruling many of us were hoping for, but precedent has been set, the Federal law maintaining discrimination against LGBT couples has been struck down and we can march forward, closer than ever to Life, Liberty, and the Pursuit of Happiness. So let’s kick out the jams, savour our victory, and go into those last struggles knowing that we shall overcome.