DOMA, §3, falls to "States' Rights" argument

@katievojtko

By Shawn Carter

As the title of this post indicates, the United States Supreme Court, by a vote of 5-4, ruled that Section 3 of the federal Defense of Marriage Act ("DOMA") is unconstitutional.

What specifically?

“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.” 1 U.S.C. §7.

What does this mean?  If you marry in a State where same-sex marriage is legal, then the federal Government must recognize it for legal purposes.

Associate Justice Anthony Kennedy, writing for the majority, said the following:

The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. 

The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and dis- abilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.

Justice Kennedy goes further to say:

"While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved."

Straight Dope

Essentially after years of seeing states' rights, long a code word for segregation and prejudices of all types, finally used to vindicate the constitutional rights of many, I chuckled as I hearken back to a very long conversation I had with someone on this very subject three years ago today.

We were talking about same-sex marriage and marriage equality under the Law.

But first, this from the dissent filed by his Honor, the Chief Justice of the Supreme Court of the United States:

The Court does not have before it, and the logic of its opinion does not decide, the distinct question of whether the States, in the exercise of their “historic and essential authority to define the marital relation,” may continue to utilize the traditional definition of marriage.

This is an important distinction for reasons upon which the Chief Justice subsequently elaborated:

The majority extensively chronicles DOMA’s departure from the normal allocation of responsibility between State and Federal Governments, emphasizing that DOMA “rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State.”

But there is no such departure when one State adopts or keeps a definition of marriage that differs from that of its neighbor,for it is entirely expected that state definitions would “vary, subject to constitutional guarantees, from one State to the next.”

Which brings me to the central point the Chief Justice is making here on this topic:

Thus, while “[t]he State’s power in defining the marital relation is of central relevance” to the majority’s decision to strike down DOMA here, that power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions. So too will the concerns for state diversity and sovereignty that weigh against DOMA’s constitutionality in this case.

In other words:

We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples.

You better believe it.

Three years ago, I suggested that if properly challenged, there can't possibly be a way for the government (state or federal) to justify the constitutionality of prohibiting any two adults the right to marry based on a definition of marriage so deeply rooted in "tradition."

Associate Justice Alito opines in his dissent:

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.

That is precisely what America is asking.  It is precisely what the issue here is.  And it took some time for me to fully understand and appreciate that point as well.

Justice Alito delves further:

The first and older view, which I will call the “traditional” or “conjugal” view, sees marriage as an intrinsically opposite-sex institution. Bipartisan Legal Advisory Group ("BLAG") notes that virtually every culture, including many not influenced by the Abrahamic religions, has limited marriage to people of the opposite sex.

Except that here in America, we are a nation explicitly founded by a bunch of white men who revered their sovereign right to practice their Abrahamic religion(s) free from intrusion by the government and then established States where many of the laws and customs were based on a morality that could come from no place other than those very Abrahamic religious beliefs.

Ask MOST defenders of opposite-sex-only-marriage why they are right, and they can cling, only desperately, to religion.

TCPalm; Christopher Arnold

 And I thought to myself three years ago today, "At what point does that not violate the Establishment Clause of the First Amendment to the Constitution of the United States?"

Because if not inherently violative, this peeks awfully close to a near-naked violation of the separation of church and state envisioned by the First Amendment.

But back to the Chief Justice for a minute, because his dissent, I believe, was measured, and stands as a warning to those celebrating in the streets and to those who would let loose the dogs of the culture war on them:

We're a long way from home on marriage equality.  Today's decision merely reaffirmed that the federal government was constitutionally constrained to respect the definitions of marriage as defined by the many States.

It won't be long before that creates conflicts between States, as citizens of this Republic also have the Constitutional right to Interstate travel.

The Supreme Court will eventually, and likely sooner than later, have to resolve, to re-quote the Chief Justice:

We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples.

But progress is progress, nonetheless.

And to those who fight the often thankless fight for the rights of Citizens in our Nation, I salute you.

Now, let's get Congress to re-write Section 4 of the Voting Rights Act.