Reality Check 101

The Supreme Court of the United States is in theory populated by nine of the nation’s wises legal minds.  There is probably no better place to apply that wisdom than in the e battle over the institution of marriage.

 Two cases have offered the Court a chance to shine.  The first was a challenge to California’s Proposition 8 which would have added that state to a long list of others who protect traditional marriage.  The second case was challenge to the Defense of Marriage Act (DOMA).  DOMA had been passed with overwhelming majorities in Congress and signed into law by President Clinton.

 The proposition 8 ruling (Hollingsworth v. Perry) was rally no ruling at all.  The Court claimed that private citizens did not have t the right (“standing”) to defend the constitutionality of a state law before appeals courts or the Supreme Court.  Chief Justice Roberts wrote that the proposition backers “had no direct stake in the outcome of their appeal.”

 Justice Kennedy answered Roberts’ reasoning this way:  “…what the court fails to grasp or accept is the basic premise of the initiative process.  And it is this.  The essence of democracy is that the right to make law rests in the people and follows to the government , not the other way around.”

 The DOMA decision (United States v. Windsor) was much more involved.  The liberal majority spent a massive amount of energy justifying the sovereignty of New York state against federal DOMA restrictions.  They skillfully portrayed the protection of traditional marriage as having its origin in vindictiveness and its purpose as targeted inequality.

 The influence of these decisions will reach much deeper than marriage alone.  First, they have inflamed rivalries between the vast majority of state that do not recognize same-sex marriage and those that do.  That will happen because the judgment was purposely limited to federal benefits for “legal” same-sex marriages.

 It also puts citizens at odds with their own states.  If legally married same-sex couples live in non-recognizing states or move into those states, they will be entitled to federal privileges but no state ones.  It will not take long for that caldron to boil.

 Third, SCOTUS has effectively short-circuited any state level initiative-led legal process. 
The Court has basically ruled that if an appeal is to be heard, it must be represented before federal appeals courts by the very government the initiative was trying to overcome.

 In the end, the Court has failed the integrity of marriage and the integrity of citizen-p0owered government.  It has indorsed the formation of a new civil right that has no constitutional basis.  Worst of all, it has added its clout to the clamor of intolerance toward anyone, state or private, who simply wants to preserve marriage.

 Justice Antonin Scalia said it well in his dissent.  “To defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more that to defend the Constitution of the UnitedState is to condemn, demean or humiliate other constitutions.”