As I discussed on CNN, I was most struck by the more small minority of justices on the Court that view such laws as justified on morality grounds. That view is now argued almost exclusively by Justice Scalia and Justice Thomas.
Kennedy’s decision is a sweeping victory for the equal protection of couples regardless of gender. He writes:
By creating two contradictory marriage regimes within the same State, DOMAforces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of statesanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriagesare unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the Statehas sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
Scalia was equally passionate. Indeed, when Jake Tapper noted on the air with me that he hasn’t seen a dissenting opinion with this type of heated language, I almost added “since the last Scalia dissent.” Scalia was at his signature best of venting his anger:
That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congressand the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every- where “primary” in its role.
The Proposition 8 decision was a win by default for the couples on standing grounds. However, it effectively kills everything on the docket after the district court order. That leaves the state open again for gay marriages.
Here is the decision in Windsor: 12-307_g2bh
Here is the decision in Hollingsworth: 12-144_8ok0
http://maddowblog.msnbc.com/_news/2013/06/26/19156364-post-doma-rand-paul-fears-humans-marrying-non-humans?lite Strange comments from some politicians…… Don’t think Rand Paul will capture the youth vote or the gay vote with comments like this.
nick,
Biased, a corporatist, possibly evil and a producer of often conflicted inconsistent jurisprudence is sufficiently damning for Scalia. But racist? Not particularly. Homophobic is a fair claim based not just on his dissent in the instant case, but past opinions as well. But he’s not stupid. Stupid is as stupid does, however, and there is only one Justice currently serving with a sub-par intellect and that’s Thomas. He should be perhaps on a municipal bench somewhere, but he’s way out of his depth at SCOTUS level logic and legal reasoning. There’s a reason he never writes any of the tough majority decisions and when he does write for the majority, it’s on legal slow pitch softball issues like the patentability of naturally occurring genetic sequences. It’s not exactly a secret in the profession. In fact, in the history since the ABA began providing evaluations of SCOTUS nominees, he’s the only one ever to get simply a “Qualified” ranking instead of a “Highly Qualified” ranking and get the job. Even Bork, whom I loathed for many reasons and was thankful we as a nation dodged that bullet, was ten times more qualified for the job than Thomas. Many lawyers I know, and more than a few judges, don’t think Thomas should have gotten past the Senate in the first place.
Gene,
I don’t think Scalia is stupid. I do believe he thinks he’s smarter than everyone else and does his best to show his contempt for other people’s opinions.
http://www.startribune.com/local/213178501.html
Gay marriage opponents see hope in Supreme Court rulings
MINNEAPOLIS — Opponents of gay marriage in Minnesota are claiming a qualified victory in two long-awaited Supreme Court rulings.
The group Minnesota for Marriage fought unsuccessfully against this spring’s movement to make gay marriage legal in Minnesota. On Wednesday, the group said the court’s rulings demonstrate that there is no constitutional right to same-sex marriage.
The high court struck down part of federal law that denies federal benefits to married gay couples. It also cleared the way for California to resume same-sex marriages.
Minnesota for Marriage chairman John Helmberger called both rulings bad but says they didn’t find any constitutional right to redefine marriage. Helmberger says it’s important for gay marriage opponents to work “harder than ever” on their cause.
SWM,
Exactly!
Tony C.,
“I am not a lawyer but I don’t think that can be the case; wasn’t DOMA the law that exempted gay marriage in one state from being recognized in another? Currently all heterosexual marriages in one state are recognized by other states….”
No. The cowardly courts stated that DOMA is discriminatory; DOMA did not allow same-sex couples to receive federal benefits. IL can still refuse to recognize a CA same-sex couple’s marriage.
Also, what Gene said……there will be more legal battles to come, but as for now, the states, (not the courts, voters’ ballot initiatives, and so far, Congress) can define marriage…this ruling is BS.
” With the demise of the Defense of Marriage Act’s benefits ban in Section 3, for legally married gays and lesbians, the Court immediately — even if inadvertently — gave rise to a situation in which couples living in states that will not allow them to marry because they are homosexuals will still be able to qualify for federal benefits, many of which are handed out or managed by state governments.
But the ruling did not do anything explicitly about another section of DOMA — Section 2, which gives the states the right to refuse to recognize gay marriages performed in other states. That thus raised the prospect that a same-sex couple married in one of the states now allowing such unions could face obstacles to their marital rights when they moved into states that still do not recognize their unions. This might be a particular problem for already-married gay couples serving in the military, who often have to move from state to state.” Lyle Denniston, SCOTUS blog
Gene, “Stupid” is often the default criticism used by people. I’m heartened [and not ass kissing] to read you don’t consider Nino stupid. To me, he’s obviously pretty damn smart. What about “racist.” I don’t believe he is, but some here do. I don’t remember you calling him racist, but I don’t remember everything. Although my acupuncturist and fellow coconut oil enthusiast, Tony C have me eating that brain food and my Jeopardy skills are showing signs of improvement. Too many holes in my game. I’m very weak on royalty, mythology and some science.
Tony,
That’s in part what the future lawsuits are going to be about: Full Faith & Credit. They should all be winners too considering this decision’s basis in the 14th. Just like miscegenation laws fell one by one after Loving v. Virgina.
Blouise:
“Strange words from Scalia given yesterday’s decision and the one back in 2001 wherein the Court actually installed a President but then I’m just a lowly retired musician, what do I know of judicial reasoning.”
*******************
The Supreme Court keeps two sets of books!! Heaven forbid it.
RWL: If a gay couple is married in CA, and their job moves to IL (a non-gay marriage state), then their marriage is null and void?
I am not a lawyer but I don’t think that can be the case; wasn’t DOMA the law that exempted gay marriage in one state from being recognized in another? Currently all heterosexual marriages in one state are recognized by other states, I don’t have time to look, but I thought DOMA was the law that carved out an exception for homosexual marriages. If DOMA has been struck down, especially on these grounds, then that goes with it. If it wasn’t DOMA, then I think this same logic should strike down that exception.
nick,
Scalia’s Catholicism is irrelevant to his inconsistent jurisprudence as is his being fat and balding. However, I don’t think even his most strident critics here – and there are a lot of them here and elsewhere – mistake him for stupid. Biased, a corporatist and possibly evil, sure, but not stupid.
Hooray, for reals.
I hope that same logic serves as precedent for employment protections.
Linda Hirshman thinks SCOTUS contradicted itself on the issue of standing:
Maybe Hollingsworth was an honest commitment to the niceties of federal standing. But denying the Prop 8 advocates standing while extending it to the Congressional Republicans in Windsor is a little awkward. The policy argument the Court articulated to grant standing in Windsor—that the Court did not want the president to usurp their role of deciding constitutional cases by refusing to defend a law and destroying standing—applies with equal force to the California government in Hollingsworth. The Court’s role in deciding the constitutionality of state laws is as great, and almost as old, as its role in federal cases. Yet the Court just turned over to the governor of California the ability to destroy its jurisdiction to decide the constitutionality of Prop 8.
The incoherence of the two standing opinions, taken together, makes it more likely Hollingsworth was simply a decision to duck for a little while longer: There are a bunch of other direct challenges in the pipeline that don’t involve a standing problem. But the language of Windsor foretells that when the court does poke its heads over the trench it will be to make the final charge toward victory.
Once again, the US Supreme Court passes the buck. So many questions (where are the lawyers to explain this uncomprehensible decision? What time will Professor Turley be on TV to watch them discuss this?):
The Courts still refused to address what constitute a marriage on a national scale. Hence, the states have the power to do so, and the federal government doesn’t? Or Congress does have the power to define marriage, but DOMA was discriminatory, since it went after a certain group of people?
If a gay couple is married in CA, and their job moves to IL (a non-gay marriage state), then their marriage is null and void?
Very cowardly of the Courts to strike down voters’ ballot initiative based on ‘legal standing or right’, and to agree with the lower courts by stating that the CA voters’ initiative is discriminatory. At the same time, ‘the justices did not address the broader legal argument that gay people have a fundamental right to marriage.’
Why not have a clean sweep by stating that gay marriage is legal or illgal in the US, and be done with it?
There will be more lawsuits on this issue to come……….
http://news.yahoo.com/blogs/news/supreme-court-strikes-down-doma-140330141.html
A court of business convience….
nick, But the catholic Kennedy wrote the majority opinion….too bad he was not more catholic on the voting rights decision.
mespo727272,
Maybe I am confused but isn’t J. Scalia speaking to the question of standing?
BY my count, 4 Js were “consistent” with regard to Prop 8 and DOMA: CJ Roberts and J Scalia (no standing in both) and Js Kennedy and Sotomayor (standing in both). I don’t expect to take the time to independently determine the bases for the other Js’ “changed” positions, but I hope to see some informed commentary in the next few days. (Volokh conspiracy blog usually has a good legal discussion of these issues.)
Not only are gay people celebrating, so are divorce attorneys and to a lesser degree, PI’s.
Blouise,
It just makes no sense in my mind…. The only thing that they have in common is that they pushed each back to the states to decide….. But for different reasons…