Posted by: SWL | July 10, 2013

Supreme Court Rulings on Same-Sex Marriage Trample Democratic Process

On June 26, the US Supreme Court ruled that a section of the federal Defense of Marriage Act (DOMA) is unconstitutional. In a separate case, the Court refused to rule in a case involving California’s Proposition 8, which defined marriage in that state as applying legally only to one man and one woman.

In the DOMA case, the Court ruled 5-4 that the section denying federal benefits to same-sex couples in legal marriages is unconstitutional. The remaining part of DOMA is still the law.

Proposition 8 was placed on the ballot by citizen initiative in 2008. Fifty-two percent of California voters approved the initiative. The California Supreme Court invalidated the vote and a federal district court agreed. The state refused to appeal the law to the US Supreme Court, so private groups filed the appeal. The US Supreme Court ruled that these private parties do not have the standing to challenge the district court ruling. This leaves the voter-approved law unenforceable unless there is a successful lawsuit or further legislation. The US Supreme Court suggested a 25 day waiting period to allow opponents of same-sex marriage to file appeals, but California officials began issuing marriage licenses within days.

President Obama was pleased with the rulings, saying that they were “a victory for American democracy.” Really?? Mr. Obama is a Constitutional scholar, but seems to have forgotten the facts. Even proponents of same-sex marriage – if they are honest – have to concede that this was a victory despite American democracy.

In the US, laws are made in the legislative branch (federal or state) or by citizen initiative petitions. DOMA was approved by Congress, representatives chosen by citizens in their respective states. Proposition 8 was placed on the ballot because the legal number of voters signed petitions, and was then approved by the majority of California voters. All these procedures represent the democratic system.

California officials refusing to defend a valid state law in court thwarts democracy because a few people are invalidating the will of the majority of state voters. When the Supreme Court refused to hear an appeal from private groups, they essentially approved the undemocratic behavior of California officials. In the DOMA case, the Court became entangled in social engineering, something not in the Constitutional description of their duties.

Justice Anthony Kennedy’s majority opinion on DOMA seemed to have more emotional rhetoric than legal language:

DOMA seeks to damage . . . the avowed purpose and practical effect of the law here in question are to impose a disadvantage . . . the principal purpose and the necessary effect of the law are to demean those persons . . .

Kennedy assumes or accuses members of Congress (and by association those of us who put them in office) of passing DOMA only to be cruel. That is an emotional and/or political response to the law. It would take days of blogging to discuss the multitudinous ramifications of changing an institution that is thousands of years old. DOMA legislation was not crafted or passed lightly in 1996.

Liberals have a bad habit of name-calling or assigning evil motives to those who oppose their agenda. Justice Kennedy did that in his opinion. USA Today published an opinion by actor Josh Gad on June 27 that mocked Justice Antonin Scalia’s insistence that “we must continue to abide by the LAW”. Excerpts: Scalia fights for the rights of people not to have rights . . . (his) face looks like a Panic Pete squeeze toy . . . He’s offended because he did not get his way . . . Gad also compared Justice Clarence Thomas to “an angry bovine”.

It seems that the only ones who are actually being, in Justice Kennedy’s words, “demeaned” are those who oppose same-sex marriage. A real “victory for American democracy” would have been the proponents of same-sex marriage respectfully honoring the free speech rights of opponents and gracefully accepting the will of the majority of Americans while continuing to exercise their own right to promote their views and possibly change minds.

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