The argument on Wednesday on DOMA was again kind of sad if you expect our government to protect the rights of minorities. I think it finally devolved into a kind of sophomoric argument about state’s rights instead of equal protection under the law. The states define marriage and the proponent of DOMA wanted to say that the Federal government could not define rights that the state has to provide, i.e., they would be dictating what rights some married couples had.
It seemed to me that the proponents of DOMA argued that the federal government, in their infinite wisdom, decided that whether states recognized marriage or not, the federal government would not. See it treats everyone equally. Well as Justice Ginsburg pointed out it does not and treats those in states that recognize gay marriage as less than those with heterosexual marriages. In fact it does just the opposite, it puts into law discrimination across the board:
“MR. CLEMENT: With respect, Justice Kennedy, that’s not right. No State loses any benefits by recognizing same-sex marriage. Things stay the same. What they don’t do is they don’t sort of open up an additional class of beneficiaries under their State law for — that get additional Federal benefits. But things stay the same. And that’s why in this sense -
JUSTICE GINSBURG: They’re not — they’re not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it’s pervasive. It’s not as though, well, there’s this little Federal sphere and it’s only a tax question. It’s — it’s — as Justice Kennedy said, 1100 statutes, and it affects every area of life. And so he was really diminishing what the State has said is marriage. You’re saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.
But the Justices did not want to open the equal protection question because they would then have to consider whether banning gay marriage was in effect discrimination. It is of course, but the Justices were still trying to convince themselves that this is some kind of fad instead of a basic question of equal rights. That was summed up in this highly disturbing exchange from Justice Roberts about the support of gay rights:
“CHIEF JUSTICE ROBERTS: I suppose the sea change has a lot to do with the political force and effectiveness of people representing, supporting your side of the case?
MS. KAPLAN: I disagree with that, Mr. Chief Justice, I think the sea change has to do, just as discussed was Bowers and Lawrence, was an understanding that there is no difference — there was fundamental difference that could justify this kind of categorical discrimination between gay couples and straight couples.
CHIEF JUSTICE ROBERTS: You don’t doubt that the lobby supporting the enactment of same sex-marriage laws in different States is politically powerful, do you?
MS. KAPLAN: With respect to that category, that categorization of the term for purposes of heightened scrutiny, I would, Your Honor. I don’t -
CHIEF JUSTICE ROBERTS: Really?
MS. KAPLAN: Yes.
CHIEF JUSTICE ROBERTS: As far as I can tell, political figures are falling over themselves to endorse your side of the case.
MS. KAPLAN: The fact of the matter is, Mr. Chief Justice, is that no other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have. And only two of those referenda have ever lost. One was in Arizona; it then passed a couple years later. One was in Minnesota where they already have a statute on the books that prohibits marriages between gay people.
So I don’t think — and until 1990 gay people were not allowed to enter this country. So I that the political power of gay people today could possibly be seen within that framework, and certainly is analogous — I think gay people are far weaker than they were at the time of Fronterio.
He sees or wants to represent this as a political power play to grant a group special (equal actually) rights and it is in reality the recognition by more and more Americans of the human condition we all share and the basic discrimination some face. He is trying to say they are not a protected class. How sad.
So I think it is clear that the court will punt on both Prop 8 and DOMA. They simply don’t get it or have the foresight to understand they are standing on the precipice of history. Prop 8 will be overturned by either the standing issue or a ruling that limits its effects to California. DOMA will similarly be overturned, probably on the standing issue or struck down on the state’s rights argument so that they do not have to rule on equal protection. But if they do that, it will come back as an equal protection case when some states allow federal benefits through legal marriage and others don’t.
If it overturned on the standing, I believe that throws the responsibility back to the President to follow the lower courts ruling that it is not constitutional and not enforce it. Does he have the political courage which he should have used before now?
But this whole state’s right argument gives me pause. I think it has become apparent that state’s rights generally has been used to take away civil rights, not protect them. I think of slavery, voting rights, school segregation, women’s rights as examples where the federal government has had to step in to ensure American’s rights are protected. Only in the case of assisted suicide have I seen states get out in front on that civil rights issue. It is a grand cop out and puts the Supreme Court in the same category as the rest of our government right now, thinking small, taking little steps, and missing the opportunities to get on with our destiny.