Friday, June 28, 2013

Takeaways from the SCOTUS Gay Marriage Rulings

Many in the vast, untamed salad of opinions that is called the “Pagan community” are celebrating with exuberance at the recent SCOTUS rulings regarding cases on gay marriage. At the risk of being a downer, these rulings need to be examined based on what, exactly, they say, before anyone starts dancing in the streets.

I should point out that I am a supporter of both gay marriage* and States’ rights myself, just to put things in perspective.

There are two separate rulings, and both need to be taken in turn. The first, United States v. Windsor, deals with the “Defense of Marriage Act”. The second, Hollingsworth v. Perry, deals with California’s Proposition 8, which the voters of California passed in 2008, and which banned gay marriage.

Neither of these cases “made gay marriage a Constitutional right”, despite what is being trumpeted loudly from certain quarters. They are both very narrow in their scope, and have more to do with states' rights than they do with gay marriage. Gay marriage was just along for the ride.

In the first, the SCOTUS said specifically that the Federal government had to recognize gay marriage because one or more states recognize it:
“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 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.”
Essentially, the SCOTUS punted to the states. Section III (only) of DOMA is unconstitutional because it usurped a power of the states to define marriage, not because there is a Constitutional right to gay marriage. If you live in a state that doesn’t recognize gay marriage, nothing changes. The court explicitly did not overturn the part of DOMA that says that gay marriage in one state doesn't have to be recognized in another state.

In the second case, the SCOTUS didn’t have anything to say about Proposition 8 specifically. All it ruled on was the ability of a third party to pick up an appeal, when party who could have appealed in the first place, chose not to:
“No matter its reasons, the fact that a State thinks a private party should have standing to seek relief for a generalized grievance cannot override this Court’s settled law to the contrary. Article III’s requirement that a party invoking the jurisdiction of a federal court seek relief for a personal, particularized injury serves vital interests going to the role of the Judiciary in the federal system of separated powers. States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse.”
Essentially, the SCOTUS said that just because there’s a state law that says you can transfer standing from one party to another, doesn't mean that you can (in a Federal court, anyway). It has nothing to do with the issue of gay marriage, because it has nothing to do with the substance of what Proposition 8 was about. If Prop 8 had been in favor of gay marriage, this same logic would have applied.

What that second decision did do, however, was give states an effective veto over ballot measures. If the people vote in favor of a ballot measure (no matter what it’s about), the state government can kill it by simply deciding not to appeal, should it be struck down in some jurisdiction within the state. Nobody can then pick up the case, and the ballot measure dies.

So, bear in mind that these are not gay marriage cases. They are, in essence, states’ rights cases. In the first, the question of gay marriage was given to the states, and the Federal government has to go along with what the state defines as marriage. In the second, the option of defending ballot measures was given to the parties involved alone; if the state government doesn't want to appeal a case against a ballot measure, it can do so and let it die, and there’s nothing the Federal courts will do about it.

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* Well, it’s a bit more nuanced than that. I am actually in favor of civil unions for everyone, as a completely secular contract between two individuals recognized by the government like any other contract is, but I feel that such should be what any couple gets, gay or straight. Let marriage, per se, remain a religious institution, ordained and regulated by the religion in question. 

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