Monday, July 1, 2013

The Inevitable March Towards Universal Gay Marriage Continues

A Measured Set of Supreme Court Decisions, Public Opinion Ahead of Law
The supreme court, in a pair of twin rulings last week, came down modestly on the side of gay rights but stopped short of overriding public opinion in two important ways of advancing a political agenda from the bench.

The first ruling, by a 5-4 majority (which seems to be the norm for the last 30 years in decisions of a controversial nature) struck down the provision of the Defense of Marriage Act that defined marriage as between a man and a woman for federal purposes.  This means that legally married gay couples in states that permit gay marriage now have access to federal deductions and benefits associated with being married, rights previous denied to them under DOMA.  The reasoning of the court was two-fold - first, a traditional conservative argument around federalism that essentially stated that definition of marriage has been historically the province of states and that on 10th amendment grounds there was no enumerated power for the federal government to overrule state judgement on that issue.  Interestingly it was 4 liberal judges joined by moderate opinion-writer Anthony Kennedy that overruled 4 conservatives on what would seem to be a judicially conservative view but for the social politics around gay rights.

The tenth amendment text in question is as follows:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The second reason given by Kennedy's opinion, and perhaps the more intriguing one, was the notion that the clause in question violated the equal protection principle articulated in the 14th amendment.  This is a fascinating argument, as the 14th amendment is clearly targeted at state laws.  Text is below:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The ruling seems contradictory.  The ruling struck down a federal law, and, believe it or not, there is nothing in the constitution that expressly forbids a federal law that does not protect citizens equally.  There are constitutional protections that prohibit voting rights discrimination on the basis of race (15th amendment) and that prohibit slavery (13th amendment) and specifically enumerated rights that cannot be denied by the federal government (articulated in the Bill of Rights, the first 10 amendments), but nothing that prohibits a federal law from unequal treatment.  What would have made far more sense than striking down the federal law under an equal protection argument would have been to strike down state laws prohibiting gay marriage as an equal protection violation imposed by the states.

The 10th amendment violation would have been sufficient to strike down the provision in question.  That Kennedy chose to reference equal protection likely foreshadows a building majority on the court around the equal protection of gay marriage equality itself.  But the court is taking a measured pace - by passing on the opportunity to make a national ruling relative to California prop 8.  The court let stand a lower court ruling striking down the prohibition on gay marriage in California by ruling that the state Republicans making the appeal did not have standing to appeal - an intellectually devoid argument since it chose to rule in the DOMA case under very similar circumstances (the Republicans defended that case as well since the Obama administration chose not to defend the law), but a clever dodge nonetheless.  This leaves the overall question of the constitutionality of gay marriage for another year and another court, but the 14th amendment argument in the DOMA ruling clearly projects a likely outcome when that day comes.  Kennedy simply decided to let the court of public opinion form a little more before the Supreme Court intervenes.

And the court of public opinion is moving.  By a massive majority, the American public now favors gay marriage.  A just-released Gallup poll shows national support at 55% for and 40% opposed, an epic turn in the past 17 years since Gallup first started polling the issue, when support was at less than half that level.  55% is far more support than any Presidential candidate has received since Ronald Reagan in 1984.  In other words, 55%-40% is a landslide.  And the opponents are dying.  The only demographic group (unless you count conservatives or Republicans as their own "demographic group") that still opposes gay marriage are those 65 and over, and only 51% of seniors now oppose it.

It is highly likely that we will see gay marriage in every state outside of the south (where majority opposition still exists) in the next 5 years.

Politicians in both parties had better get on board or history will remember them harshly.  This is not a Republican/Democratic issue, as bipartisan support for gay marriage bills in places like New York State has proved.  It is a right/wrong issue.

The one thing that surprised me about the Supreme Court ruling was that the court elected NOT to strike down the provision of DOMA that permits states to not recognize gay marriages from other states.  This creates a legal and administrative mess, is unprecedented in US marriage law (states recognize marriages of first cousins from other states, of minors from other states and so on) and is black letter unconstitutional, in my opinion.  The relevant section of article 4, section 1 of the constitution is below:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.  And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Perhaps this is more judicial restraint in letting the political process play out.  But it is wrong on the law.

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