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.
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