In its wisdom, the Supreme Court yesterday decided to hear two cases that will determine the shape of marriage in America — who, by mutual consent, gets to marry the person of his or choosing, with the full benefits and obligations of that legal status, and who does not. One case is a challenge to the federal Defense of Marriage Act, and the other, a challenge to the California law, passed by voter referendum, known as Proposition 8.
Being a person of suspicious nature, and having covered the right wing of American politics for decades, I confess to some trepidation at the prospect of the high court, in its current wing-nut-majority composition, taking up these cases in tandem.
Apologists for DOMA, such as President Bill Clinton, who signed it into law, like to downplay its reach, and spin it in a folksy, states’ rights kind of a way. In 2004, Clinton explained it to me this way:
“[W]hen I signed the Defense of Marriage Act, all it did was to say it’s still a question of state law…,” Clinton continued. “That’s the way America’s always been.”
Were that actually the case, one would expect the Roberts court to uphold DOMA. But Clinton conveniently leaves out the part where DOMA deprives same-sex couples legally married in those states of such federal entitlements as spousal Social Security benefits, and demands a tax penalty on the estates of deceased spouses of same-sex couples before those assets pass on to the surviving spouse. (The latter is at issue in the DOMA case the court is taking up.) So, it’s hard to see how even a right-wing majority could uphold DOMA as constitutional. That’s where Prop 8 comes in, and why I fear jurisprudential mischief.
When California voters passed Proposition 8 in 2008, it effectively overturned a state Supreme Court decision that legalized same-sex marriage in the land of endless summers. The 9th circuit overturned Prop 8, but that judgment has been on hold pending action by SCOTUS.
The legal issues involved are complicated beyond my limited level of expertise, but they involve first a question of whether or not Prop 8 proponents have standing before the court, and then, if decided on the merits, could yield a complicated patchwork of marriage-equality oases in the
SunshineGolden State — presumably cities that had issued marriage licenses to same-sex couples before Prop 8 — while the rest of the state closed the chambers of Justices of the Peace to those seeking to wed a person of the same sex.
Lyle Denniston writes at SCOTUSblog:
The merits argument, if the Court does get to it, is whether the Constitution’s Equal Protection Clause bars California granting homosexual couples a right to marry then withdrawing that right, or more fundamentally from defining marriage as the union of a man and a woman. If the Court were to rule that the Constitution does not impose a bar to California’s actions, that would mean that states were free to maintain traditional marriage restrictions — provided that they did not discriminate on the basis of a forbidden category of citizens.
I get the willies a lot when it comes to wing-nut justice, so perhaps I’m just being a nervous Nelly here. But I can’t help but recall the diabolically genius decision of the Roberts court on Obamacare, where the mandate that so vexed the Tea Party was upheld, but the expansion of Medicaid (the insurance program for poor people) that was part of the bill was compromised. How the erosion of that structural underpinning of the program will ultimately play out remains to be seen.
Given the extraordinary results of marriage-equality referenda in the 2012 election — four states said yes — and the propensity of the right wing for sore-loserdom, perhaps I might be forgiven my anxiety.