On Wednesday, the United States Supreme Court handed down two decisions pertaining to the controversial subject of same-sex marriage. Those who agree men should be allowed to marry other men and women should be allowed to marry other women reacted jubilantly, apparently believing that a new day had dawned in America. Those opposed to the practice reacted as though what the nine justices had decided sounded some kind of death knell for contemporary culture.
In truth, what the nation's highest court determined as far as the federal Defense of Marriage Act and California's Proposition 8 are concerned leaves things only slightly less murky than before the rulings were issued. It is still not at all clear that a marriage where both parties are of the same gender entered into in one state must, under the U.S. Constitution, be recognized as a marriage in all states.
The court's decision to vacate and remand the case against Proposition 8 – which banned gay marriage in California – back to the 9th Circuit means no point of law or constitutionality has been upheld or struck down. By deciding that those who brought suit in defense of a law passed by the citizens of California did not have the proper standing to act as they did, the justices have told us nothing about the underlying issue.
Of equal or perhaps even greater concern is the lingering fallout from the decision by the state's then-governor and then attorney general not to defend the law in court as they were otherwise obliged to do. The proper remedy for that cannot simply be that the people must vote them out. Such a solution dramatically reduces the power of initiative and referenda, placing things back in the very hands of the elected officials who had refused to take the action the people wanted in the first place. That, however, is a matter for another column.
In U.S. vs. Windsor, which dealt with the Defense of Marriage Act, the executive branch – like the responsible parties in California – declined to defend the law in court as many scholars generally feel they are required to do. It is entirely possible that the Obama administration's decision to "stay on the bench" in the DOMA case had an impact on the eventual outcome, the court having found – if one reads between the lines – that objectionable, anti-homosexual bigotry was, in part, a motivating factor behind the law in the first place.
It is interesting to look at what the court actually did in striking down a specific part of DOMA as unconstitutional. By focusing on the ability to file tax returns jointly, to collect Social Security survivor benefits and other such policy ephemera, the justices not only usurped the power of the national legislature to decide such matters, it left intact the overriding question of whether or not same-sex marriage recognized in one state must be recognized by all.
Furthermore, by narrowly focusing on the benefits question, the decision in U.S. vs. Windsor arguably cheapens the institution of marriage just as the opponents of same-sex marriage have all along claimed it would.
There is, after all, no federal or state requirement that a marriage be consummated, leaving the institution now open to otherwise heterosexual men and women who wish to marry inside their gender specifically for the purpose of receiving the federal benefits to which the court has now determined they are entitled.
In this strange new world, they are left free to otherwise live their lives in every other context as heterosexuals, thus reducing the institution of marriage to a pathway to entitlements from the sacred institution it has for centuries been held to be. Remember, before this ruling, two matronly cousins living together in retirement, no matter how needed, were denied the tax benefits of being partners by Congress. Now, not only they can marry to get these benefits, so can wealthy barons seeking to limit their tax liability both before and after death.
It is probably appropriate that the justices have left things in a confused state; it was a bloc of judges on the Massachusetts State Supreme Court who started this snowball rolling down the hill in the first place.
One observation that is unimpeachably true is that the courts, whether state or federal, have disregarded the obvious public sentiment regarding same-sex marriage. In most every state where it has been on the ballot, including California, the voters have chosen to deny such marriages legal recognition.
In writing the Constitution, the Founding Fathers intended for the courts to be the weakest of the federal government's three branches. By injecting their authority into such cultural debates as same-sex marriage, by paying more attention to polls than to electoral results and other finite, reliable expressions of the will of the people, they are turning an already rocky national government on to its head.
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