Thoughts on Today’s Gay Marriage Decisions

So, today is gay day at the Supreme Court. We got one ruling – Windsor v. United States (full ruling) – unambiguously in favor of what the gay lobby wanted, and another – Hollingsworth v. Perry (full ruling) – which has the side-effects they want. Here are some brief reasons I disagree with the Supreme Court’s decision in each.

Windsor v. United States (“overturning DOMA”) – I don’t have too much of a problem with this one, but I would have joined the dissent were I on the Court. It’s true enough, as the majority states, that defining and regulating marriage has traditionally been the purview of states and not the Federal Government – but I don’t see that as a reason why the Federal Government can’t have a definition of marriage for its own purposes. Marriage affects, after all, the implementation of a large number of federal policies, including, among other things, the dispensation of benefits and immigration rights. Since no one state should be allowed to set policy on these things, the Federal Government should be allowed to create its own definition of marriage to answer questions about what happens when marriages come into dispute. If all or even most states recognized gay marriage, that would be one thing, but in reality only about a quarter of them do. The United States is a dual sovereignty system, and there is no reason why it can’t have one definition of marriage for federal purposes and others for the purposes of the several states. I also don’t buy the Equal Protection argument for reasons I’ve outlined before. For Equal Protection to work, gay couples have to be “equally situated” with respect to marriage – and they are, obviously, not so situated. So, the United States is not “injuring” anyone by denying an imaginary right. I don’t really like or agree iwth Scalia’s dissent (it basically says that the Court doesn’t have jurisdiction, and furthermore that the Majorit not only knows that, but also that it has twisted itself into logical knots denying it so that it can grandstand before the nation) – but I do very much agree with one key plank in it, which is that the Majority needs to shit or get off the pot about whether DOMA is constitutional. If the Majority had reason to believe that the Constitution protected gay marriage, then it would be obligated to overrule all those state statutes that deny this right. Since it declines to do that, it cannot believe that there is a right to marry in the Constitution – at least not for gays. If that’s the case, then there’s no sense in which it is “injuring” anyone by allowing New York to recognize an Ontario same-sex marriage while also affirming the Federal Government’s right not to recognize it for federal purposes. The marriage is, after all, not recognized in 2/3 of the states of the Union, and the Court doesn’t seem to see any injury in that. So, unless the Majority is willing to say that gay couples have a constitutional right to marry, there is no “injury” in DOMA, provided it leaves the states to their own devices on the issue, as it does. Therefore, this one should have gone the other way.

Hollingsworth v. Perry (“killing Prop 8″) – Just go read the dissent. After you’ve read the dissent, there’s pretty much no way you can agree with the Majority. The case was decided on standing – i.e. to say that the people who defended California’s law (California’s own state government declined to do so) were not proper representatives of the state. The Dissent makes appropriate hash of that, citing the long list of precedents of cases where the Court has decided that it should defer to state law for the state in question in deciding who has standing to represent the state. California state law pretty clearly recognizes the plaintiffs’ standing. True, they’re not government officials, but California law is clear that the purpose of ballot initiatives is to uphold the idea that the right to govern in California rests with the People. To be sure, not just any citizen can claim to speak for “The People,” but citizens who represent groups with vested insterests in a position on an issue which has been duly voted upon and approved by the majority of the electorate – as in, e.g., the case of a ballot initiative – do count as representatives. The Dissent is right that the Court can’t just ignore that because it’s inconvenient for the way they want the ruling to go. Since the plaintiffs pretty clearly have standing, then the Court of Appeals’ ruling should stand, and Prop 8 is the law of California.

In conclusion, I think both cases were wrongly decided – though as I said, I don’t really feel too strongly about Windsor. If the Court wants to say that the Feds have to recognize any marriage any state approves for Federal purposes, well, I disagree, but worse things have happened.

As usual, I’m more annoyed by the gay lobby than the Court. I think it’s positively hillarious – in a depressing way – that large number of my friends who were shocked, SHOCKED! and outraged on Monday that SCOTUS would not defer to Congress on the matter of the Voting Rights Act, and who were shocked, SHOCKED! and outraged ahead of the Obamacare ruling at the possibility that the Court might not defer to Congress are now completely unconcerned that the Court has … wait for it … overruled Congress on the matter of the Defense of Marriage Act. Apparently the Supreme Court is only responsible for defering to Congress when Congress is saying things these people want to hear.

It’s also hillarious – again in a depressing way – that so many of the gay lobby’s supporters are trumpeting this as a victory for democracy. To reiterate – the People of California voted on a popular ballot initiative and passed it by a comfortable majority. The court system of the state then overturned it on dubious grounds, and the state’s duly elected representatives declined to defend it in court. The Court system eventually decided that the ballot initiative was law in California, but the Supreme Court decided to overrule that decision and send it back down to exactly the level of court which had decided that what the majority approves, in accordance with the procedures laid out in California’s state constitution for turning majority approval into law, didn’t count in this case because political prefernce. Whatever you think of the merits of the legal process – as regards the Rule of Law – involved in this, you’re simply an idiot if THIS is your poster child for “democracy in action.”

So, for me the silver lining is that hopefully this will calm down a lot of the gay rights nonsense. Then we can get back to real issues like ending the War on Drugs, stopping the NSA domestic spying programs, setting some clear limits on drone attacks, etc.

UPDATE: Great, I checked Facebook, and there’s another level of irony entirely. It isn’t just that the left absolutely doesn’t support the Court interfering with Congressional acts ever bucept those times when they like the outcomes. No, it’s also that it’s OK for Congress to use 40-year-old evidence to the exclusion of current evidence in justifying the usurpation of state prerogatives when the outcomes are good. Here’s one of Noah’s friends:

If you’re keeping score, they were batting .500. Good decision on DOMA (Clinton’s long-lasting achievement!) and lousy decision on Voting Rights Act (“It’s unconstitutional because it’s worked so well”).

Which is just moronic, because the basis for DOMA and the Voting Rights Act was more or less the same. In the Windsor ruling, the Court acknowledged that the Federal Government could usurp state prerogatives, but only if it had a compelling reason to do so. “Mere animus” doesn’t pass the test, and it’s on that basis that they decided that whatever counts as a marriage in any state (pick a state) counts as a marriage at the federal level. In the case of the Voting Rights Act – Shelby County v. Holder – the point was … well, the same. Congress can’t make a law – or in this case renew one – that usurps state prerogatives without providing a compelling reason – and “shit happened 40 years ago” isn’t enough. If Congress had reviewed the situation on the ground today and made appropriate adjustments, the Voting Rights Act would be constitutional. Taken to it’s logical conclusion, it follows that this Facebook friend of Noah’s thinks that 40-year-old conditions are enough to justify DOMA. But if that were the case, then DOMA would easily stand: 40 years ago, not only did every state in the Union along with every country in the world deny gay marriage “rights,” the very idea of gay marriage was considered absurd by most people, including a solid majority of gays. By those standards, there should be no problem with the federal government refuing to recognize gay marriages! So, is that the standard we apply?

COME ON, people! I’d say “try harder,” but “try even just a little bit” would be closer to it.

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