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SCOTUS Strikes Down DOMA, 5-4, and Strikes California’s Prop 8 Down on Standing (Updates)

The majority strikes California's Prop 8 down on standing. See also: Rick Santorum blasts decision.

by
Bryan Preston

Bio

June 26, 2013 - 7:45 am

Justice Kennedy woke up on the Democrat side of the bed today and voted with the court’s four Democrat appointees to strike down the Defense of Marriage Act.

On Prop 8, Justices Roberts, Scalia, Ginsburg, Breyer and Kagan dismissed the case against it on standing of the plaintiff, not the merits of the case or the legality of amending the California constitution by popular vote to ban same-sex marriage. The effect of that is to vacate the constitutional amendment passed by a majority of Californians, which was overturned by an activist judge. Therefore, same-sex marriage is legal in California.

DOMA was passed by bipartisan majorities of Congress and signed into law by President Bill Clinton in 1996. It therefore enjoyed more democratic legitimacy than ObamaCare, which was passed against the will of the American people by a partisan majority in Congress. The court upheld ObamaCare on specious grounds that a fee passed as a fee is really a tax by another name, and probably because President Obama threatened the court as it considered his signature law. There is a consistency to both its Voting Rights Act and DOMA decisions, namely, modesty with regard to federal power. The majority saw no such modesty when it came to forcing Americans to buy insurance.

I bring that up to point out that Obama’s “passed with strong majorities” line was always constitutional nonsense. And to point out that our nine robed masters can be and often are as political as anyone else. The four Democrat appointees on the court nearly always vote as a bloc to advance the left’s political goals. And so today’s DOMA decision went.

More:  Back in March I anticipated where things are going, and countered the argument that, well, it’s just time for the state to get out of marriage altogether.

The most likely outcome at this point is that same-sex marriage is ratified. That’s not the end of the story, though. No issue of this magnitude can pass without having many unintended consequences. Roe v Wade really didn’t settle abortion as an issue; arguably that ruling made things worse. Ratifying same-sex marriage will likely lead to discrimination lawsuits against pastors and churches that resist performing ceremonies for same-sex couples, leading to bankruptcies, and eventually, to churches, not the state, vacating marriage. The risk of lawsuits and being bankrupted by court costs will be too great. So many churches that adhere to the current definition of marriage will simply no longer marry anyone, to avoid being taken to court and sued for discrimination.

Advocating that the state get out marriage misunderstands the role of the modern state. It doesn’t exist to devolve or balance power or to live within its constitutional or moral moorings. It exists to amass power, and in Democrat hands, it exists to punish opponents and reward friends.

I also predicted that, mostly, Americans won’t care very much what happens to churches. I see no reason to revise that prediction.

More: James Joyner writes that the DOMA decision is far more sweeping than expected, and identifies gays as a protected class.

Bryan Preston has been a leading conservative blogger and opinionator since founding his first blog in 2001. Bryan is a military veteran, worked for NASA, was a founding blogger and producer at Hot Air, was producer of the Laura Ingraham Show and, most recently before joining PJM, was Communications Director of the Republican Party of Texas.

Comments are closed.

Top Rated Comments   
So let me get this straight (no pun intended), the SCOTUS has been meddling in matters that are the domain of state authority for generations - such as abortion.

Yet, when DOMA - a federal law - comes up, suddenly they want to adhere to a strict federalist interpretation that strikes down a federal law on the matter.

In the meantime, abortion is still federally protected up to a point. So how is federal meddling in marriage via DOMA significantly different than the federal government meddling in abortion?

On top of that, while they were clearly willing to step into a state domain issue and decree a ruling on abortion, they now take the opposite tact on Prop 8 and declare that it's a state domain issue and not something they can involve themselves in?

Face it, there is an agenda and the rules are not applied universally nor consistently. Whatever is necessary to twist a rule, interpretation, law, or constitutional judgement to get the end result they want is what is going to happen.

Since the federal government has all of the power - might makes right in this case and there really isn't anything to be done about it that will change how the federal government conducts itself.

My gut feeling these days is everything is being dismantled. By whom or for what purpose remains to be seen - but the old Chinese curse about living in interesting times comes to mind....
42 weeks ago
42 weeks ago Link To Comment
There are two distinct facets to marriage: legal and religious.

Legally marriage has an enormous impact on taxes, insurance benfits, responsibility for children and authority to make life-altering decisions (like whether or not to pull the plug). Religiously marriage is a sacrament viewed differently by different religions, but to my knowledge none of the major ones recognize it as a union of two same-sex people.

The problem here is that these two facets should never have been forced together, and that's just what the government did. The best solution would be for the government to get out of the marriage business altogether.
42 weeks ago
42 weeks ago Link To Comment
No, there wouldn't be. Which is one more reason why the feds should have a whole lot less taxing authority.
42 weeks ago
42 weeks ago Link To Comment
All Comments   (67)
All Comments   (67)
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Face it. With the Four Horseman of the Apocalypse held at bay so well by Capitalism (and let's name them -- Predators, Famine, Disease, War (not to mention infant mortality, short lifespans, and infertility) strong, reproductive marriages of the traditional sort are no longer as necessary as they used to be. Preservation of the small tribe living on the edge of extinction is not longer the main focus of our existence as it was for most of our species existence. The definition of "marriage" was bound to change. But my beef is Why call it marriage? It is so different it simply deserves a different word. An automobile is not a haywagon so why call it that just because they both have four wheels and they both get you from point a to point b.
41 weeks ago
41 weeks ago Link To Comment
BTW, only half of DOMA was stuck down.

It is interesting hearing the Israeli news - taxpayer-funded Army (left-wing) radio, no less - distort the Supreme Court decision to push their agenda on us.
42 weeks ago
42 weeks ago Link To Comment
It is now abundantly clear that it must be the People that amend the supreme law of the land, the Constitution, to remove the institution of marriage...a union between one man and one woman, from government power.

"Congress shall make no law, nor the President execute any policy, nor any courts of the United States may rule that anything other than a union between one man and one woman is a marriage."

As it stands, we have more than enough states to pass and to ratify such an amendment, so trhe time to do so should be now.
42 weeks ago
42 weeks ago Link To Comment
Pentheus



Have you ever heard a perspective about homosexuality that was neither pro-gay or homophobic?

If you had it would either be discrimination, a hate crime or murder.

If you speak of homosexuals it must be to promote extra privileges
42 weeks ago
42 weeks ago Link To Comment
After a little reading...

Guess who gave us the federal non-profit laws?

Some guy by the name of Woodrow Wilson ...and a Democrat controlled House and Senate. (The Pubbies were so outnumbered, they just as well have not shown up)
42 weeks ago
42 weeks ago Link To Comment
If government got out of the business of licensing and regulating marriage, this wouldn't be a problem, to begin with. As is, most laws wrt marriage are some form of Jim Crow law, punishing one group or individual -including heterosexual men, gays and lesbians, et al.- while rewarding religious traditionalists - and women.

If you'd kept your marriages in the church, where they belonged, you wouldn't be having this discussion.
42 weeks ago
42 weeks ago Link To Comment
Are Kagan and Wise Latina an item?
As Scalia said, this bunch has an exalted notion of the role of the supreme court in our society. He could have tossed in activist judges and unelected social engineers everywhere. But don't be too hard on him -- maybe, just maybe, that's up to us. We need a new SC, among other things.

Given the number of impotent pieties and pass-the-popcorn comments round here, it's hard to be optimistic.
42 weeks ago
42 weeks ago Link To Comment
So let me get this straight (no pun intended), the SCOTUS has been meddling in matters that are the domain of state authority for generations - such as abortion.

Yet, when DOMA - a federal law - comes up, suddenly they want to adhere to a strict federalist interpretation that strikes down a federal law on the matter.

In the meantime, abortion is still federally protected up to a point. So how is federal meddling in marriage via DOMA significantly different than the federal government meddling in abortion?

On top of that, while they were clearly willing to step into a state domain issue and decree a ruling on abortion, they now take the opposite tact on Prop 8 and declare that it's a state domain issue and not something they can involve themselves in?

Face it, there is an agenda and the rules are not applied universally nor consistently. Whatever is necessary to twist a rule, interpretation, law, or constitutional judgement to get the end result they want is what is going to happen.

Since the federal government has all of the power - might makes right in this case and there really isn't anything to be done about it that will change how the federal government conducts itself.

My gut feeling these days is everything is being dismantled. By whom or for what purpose remains to be seen - but the old Chinese curse about living in interesting times comes to mind....
42 weeks ago
42 weeks ago Link To Comment
Here is the problem. We have tied our own hands behind our backs. One side is for limiting the courts. The other side is for lettign them act as a left-wing dictatorship. this is like have a war, where one side uses chemical weapons and the other refuses to.
42 weeks ago
42 weeks ago Link To Comment
There is going to be a reckoning. Keep your powder dry.
42 weeks ago
42 weeks ago Link To Comment
What was the reasoning? Was this a Federalism ruling? Or was it some touchy feely "human dignity" ruling?

If it is a strong Federalism ruling, then I can support that. But I doubt it given the 5-4 Kennedy swing vote decision.
42 weeks ago
42 weeks ago Link To Comment
Have you ever heard a perspective about homosexuality that was neither pro-gay or homophobic?

http://goo.gl/ZYt0E
42 weeks ago
42 weeks ago Link To Comment
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