Kennedy Dooms DOMA; Court Lets Prop 8 Fall, Limits to California

Kennedy Dooms DOMA; Court Lets Prop 8 Fall, Limits to California

Justice Anthony Kennedy provided the swing vote in a narrow 5-4 Supreme Court decision Wednesday striking down the Defense of Marriage Act (DOMA), which had defined marriage as between a man and a woman for federal purposes, and had allowed states to ignore legal same-sex marriages in other states. Separately, the Court decided that proponents of California’s Proposition 8, which upheld traditional marriage but was struck down by lower courts, lack standing to challenge those courts’ rulings, meaning that Proposition 8 is invalid.

(DOMA decision is here; Prop 8 decision is here.)

DOMA was passed by Congress and signed into law in 1996 by President Bill Clinton. Critics at the time charged that it violated the Full Faith and Credit clause of the Constitution, which requires states to honor contracts, public records, and court decisions from other states. Kennedy maintained in his ruling that the Court’s decision only applies to those marriages that are already legal and does not legalize same-sex marriage in states that do not provide it, though those states must honor such marriages from other states.

One of the immediate consequences of the Court’s decision to strike down DOMA is that members of same-sex married couples who are applying for green cards for foreign spouses will now be able to sponsor those spouses for immigration, provided their marriages were legally conducted in the U.S. or overseas.

Three dissenting opinions were written–one by Chief Justice John Roberts, and one each by Justices Antonin Scalia and Samuel Alito. Chief Justice Roberts acknowledged in his dissent that the majority opinion was based on federalist principles; Scalia charged that the majority’s decision effectively prevents advocates of traditional marriage from supporting current law by casting their views as abhorrent. He noted that “the Constitution does not forbid the government to enforce traditional moral and sexual norms.”

Scalia, like Roberts, emphasized that the Court lacked jurisdiction to hear the DOMA case because it presented no actual controversy, since the litigant (who was fighting an estate tax) had won in the lower courts. Instead, Scalia said, the Court was intervening to resolve a constitutional issue without any particular controversy before it–something it does not have the power to do. He charged that the majority sought to exert judicial supremacy: “It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role,” he wrote.

On Proposition 8, the Court declined to issue a substantive ruling, meaning that while same-sex marriage will be permitted in California, the issue is not decided for other states. The majority opinion, issued by Chief Justice Roberts and joined by Justice Antonin Scalia, holds that the Court does not have the power to decide the case. On this occasion, Justice Kennedy was in the dissent. Proponents of same-sex marriage were mildly disappointed by the ruling, which they hoped would strike down similar propositions across the nation.

The dissent, written by Kennedy, points out that the litigants only brought the case because California’s own government had refused to defend Proposition 8 in court. Under state law, Kennedy notes, a suit may be brought when the state’s own officials fail to defend a law in court–and that alone should have granted standing. “The Court’s reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials–the same officials who would not defend the initiative, an injury the Court now leaves unremedied.”

Overall, the two gay marriage decisions today represented a victory for advocates of same-sex marriage, but also upheld the principle of state powers–a pattern for the Roberts court, which has tended to uphold liberal legislation and views but has re-affirmed federalist principles once thought to be in decline. As with other state powers decisions by the Roberts court, however, these decisions could limit the ability of citizens of those states to decide complex matters for themselves, strengthening officials’ power at the expense of voters.


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