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DOMA Struck Down

Today, the Supreme Court struck down DOMA- the federal gay marriage case. As expected, the decision was written 5-4 with Kennedy joining the liberal wing. Scalia led a blistering dissent and read a lengthy statement from the bench. Although not unusual, it illustrates the strong feelings evident. Roberts noted that the DOMA/Windsor case does not have the elements to decide whether states can maintain the traditional definition of marriage, the most important crux of the entire debate. Although there is no sweeping language from Kennedy granting broad homosexual rights, he did say that special consideration must be afforded the legitimacy of laws that seek to “disparage” a class of persons. Using this criteria, DOMA could not survive scrutiny. Alito questioned whether there was even standing by BLAG to pursue this case before the Supreme Court and Scalia chided the Court for failing to establish a standard of review for gay marriage laws in particular and homosexual rights in general. By “creating” this special consideration standard, it will make it more difficult for laws that address these issues to withstand scrutiny. Scalia asserted that a simple rational basis review would have sufficed and that under that standard, DOMA would have survived. The practical effect is that homosexual couples who are married under state laws will now be entitled to the same benefits as opposite-sex couples for federal purposes.

Roberts got the Proposition 8 case as expected. In that case, they ruled 5-4 that Perry- the petitioner who was against same sex marriage in California- did not have standing to bring the case. In practical terms, this means that the decision of the Ninth Circuit striking down Proposition 8 is affirmed and the ban on gay marriage does not stand. Stating that they have never allowed a private party to challenge the constitutionality of a state law when the state has opted not to, they refuse to do so now. Technically, they reprimanded the Ninth Circuit for even taking the case in the first place, remanded it to that Court with instructions to dismiss the appeal for lack of standing by one of the parties. The practical effect is that Proposition 8 is struck down in California.

It is vitally important to note that in neither decision, the Court declared that there is a constitutional right to same sex marriage. In the Perry decision authored by Roberts, he was joined by Scalia, Breyer, Kagan, and Ginsburg, which makes for an extremely weird line-up. In short, they ruled pretty much as expected although the alignments are a little askew. One would expect this issue to revisit the Court as challenges against laws in states that have banned same sex marriage or defined marriage in the traditional sense crop up. In short, they put off the bigger questions for another day behind a veil of legalese.

I will have a further look at these decisions soon…

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