I was pleasantly surprised today when, in a 5-4 decision, the Supreme Court struck down Section 3 of DOMA as unconstitutional. I tend toward pessimism in these things and, after yesterday’s ruling in the Voting Rights case, I was not expecting happy news.
The majority opinion, written by Justice Kennedy, is interesting reading. It bases it’s rationale on federalism. The States have the right to define marriage. In the case before them, the State of New York recognized the Canadian marriage of two women as valid. The court found the effect of Section 3 of DOMA was to single out a subset of valid New York’s legal marriages for detrimental treatment under Federal law. Indeed. the opinion cites references from the Congressional Record confirming that the only purpose of the law to deny equal treatment under the law to members of a specific group.
“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.”
They said it was a violation of the ‘Equal Protection’ clause in the Fifth Amendment to do this.
While great news, the opinion is not a mandate for marriage equality. The court did not strike down Section 2 of DOMA. Section 2 says that States are not required to recognize same-sex marriages from other States despite the “Full Faith & Credit” clause in Article IV of the Constitution.(Section 2 of DOMA was not challenged in this case.)
The court also expressed no opinion on the rights of individual States to prohibit same-sex marriage. The ruling only means the Federal government cannot treat some legal marriages differently from other legal marriages.
There were three dissenting opinions; also interesting reading. Chief Justice Roberts based his dissent on the confusion that will arise without a uniform federal standard. He also fears that the ruling will be used in future cases to challenge the definitions of marriage adopted by individual States. One can only hope he is right.
Justice Scalia’s dissenting opinion is both interesting and, to my mind, somewhat bizarre. He rejects the majority opinion that SCOTUS had the right to hear the case at all because there was no dispute. The lower court had ordered the refund of estate taxes paid because of the application of the DOMA definition of marriage. He felt since the Executive Branch opted not to defend DOMA in the case, the matter was resolved and there was no dispute at issue on which the court could rule.
Justice Scalia went one to say the majority opinion was based entirely on their desire to weigh in on the underlying issue of same-sex marriage. He felt the rationale that the law was a violation of the Fifth Amendment because the express intent was to single out a specific group for negative treatment was invalid. He feared future Courts might choose to invalidate any law it felt was “mean-spirited”. One can only hope he is right. Like Chief Justice Roberts, he predicts the ruling will be used the challenge State marriage definitions by claiming that denying some people the right to marry is unequal treatment. Again, one can only hope. He reminds his colleagues that the Constitution is silent on the issue of same-sex marriage;
“…the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.”
He’s right, of course. Likewise, it neither requires nor forbids our society to approve of opposite-sex marriage. It does, however, offer the hope that all citizens will treated fairly and equally. I guess that is the part he objects to.
In a third dissenting opinion, Justice Alito poses the issue that by choosing not to defend DOMA, the Executive branch deprived the Legislative Branch their constitution right to legislate. I actually find some merit in this argument but I don’t see that it alters the fundamental issue that the law. as enacted, violates the right of some citizens to equal treatment.
I was not surprised that Justice Scalia would offer a full-throated defence of the right of a majority to be “mean-spirited”. I was certainly not surprised to see Justice Thomas agreeing with all the dissenting opinions. It has been a good week for Justice Thomas. He came out firmly on the side of property developers over the public’s interest in preserving the environment. He offered his passionate support for the right of States to deny voting rights to minorities. And, with his support of all the DOMA dissenting opinions that the Federal government has every right to establish a second-class status for same-sex marriages, he lends his support for the concept of ‘separate but equal’.