Court must favor same-sex marriage
Proposition 8, California’s ban on gay marriage, and the Defense of Marriage Act (DOMA) which prevents same sex marriages from being recognized at the Federal level, went before the Supreme Court last week. The court has several options regarding these two laws, but it should dismiss the Proposition 8 case on procedural grounds and overturn DOMA in the name of states’ rights.
Potential rulings on Proposition 8 could be wide and varied. It could strike the amendment for just California because the California Supreme Court ruled a gay marriage ban unconstitutional. This decision would be considered a narrow ruling. The court could also say that any state ban on gay marriage is unconstitutional and strike it down for the country, similar to Roe v. Wade. This would be considered a broad ruling. Additionally, the court could dismiss the Proposition 8 case altogether, saying that to continue a lawsuit, you must have been harmed in some way, and the supporters of Proposition 8 have not been harmed by gay marriage. The court could also declare that civil unions and marriage are the same thing, which would have very unclear implications.
If the court takes a broad ruling, it would give the Federal government police power — the power to regulate people, not as consumers, income-earners, or smokers, but as human beings living, breathing, and trying to get married. This power is reserved for the states.
If the court takes a narrow ruling, it would respect states rights and police power, but only overturn California’s gay marriage ban. But there is no need to. The court should not only respect states rights and police power, but also preserve everyone’s freedom to marry by dismissing the case on the grounds that those suing have no reason to be in court.
In all seriousness, if someone’s gay neighbors get married, he or she is no worse off. Gay people already live together. It really doesn’t affect anyone else if they’re granted the legal rights of marriage.
When someone sues the Federal government, it’s because he or she was hurt or otherwise damaged. When the gay couples suing the government won their case in California court, the damages done to them were repaired. They were allowed to marry. They didn’t appeal the case. The case is in Federal court now because the supporters of Proposition 8 continued the case. They have no right to be in court because they were not damaged.
If the case is dismissed, then gay marriage remains a state decision — as it should be — and gay couples in California get to marry. More importantly, this decision legally recognizes that gay marriage has no negative externalities, and nicely slaps the faces of Proposition 8 supporters by telling them that their position is so invalid that the court won’t consider their arguments.
The DOMA case is simpler. Gay marriage is a state issue. Conservative justices must limit Federal power by saying that the Federal government can't invalidate state police power in recognizing marriages. I believe that the liberal justices will cast four votes for overturning DOMA and Chief Justice John Roberts and Associate Justice Anthony Kennedy will join them on the grounds of Federalism.
Interestingly enough, Section 2 of DOMA isn’t being challenged. This section says that states don’t have to recognize gay marriages made in other states. This flagrantly violates the Full Faith and Credit Clause of the Constitution (Article IV, Section 1), which states that laws made in one state have to be respected in another. Why this isn’t being challenged in court is a mystery — it’d be a very quick way to repeal DOMA.
The court is likely to overturn DOMA and to at least recognize gay couples’ rights to marry in California by taking either a narrow ruling or dismissing the case altogether. Either way, it’s a win for gay marriage and a win for limited government and states’ rights.