Political Animal


December 08, 2012 9:52 AM Supreme Court to Decide the Fate of Marriage in America

By Adele Stan

In its wisdom, the Supreme Court yesterday decided to hear two cases that will determine the shape of marriage in America — who, by mutual consent, gets to marry the person of his or choosing, with the full benefits and obligations of that legal status, and who does not. One case is a challenge to the federal Defense of Marriage Act, and the other, a challenge to the California law, passed by voter referendum, known as Proposition 8.

Being a person of suspicious nature, and having covered the right wing of American politics for decades, I confess to some trepidation at the prospect of the high court, in its current wing-nut-majority composition, taking up these cases in tandem.

Apologists for DOMA, such as President Bill Clinton, who signed it into law, like to downplay its reach, and spin it in a folksy, states’ rights kind of a way. In 2004, Clinton explained it to me this way:

“[W]hen I signed the Defense of Marriage Act, all it did was to say it’s still a question of state law…,” Clinton continued. “That’s the way America’s always been.”

(New York magazine offers an enlightening compendium of Clinton’s DOMA excuses, here.)

Were that actually the case, one would expect the Roberts court to uphold DOMA. But Clinton conveniently leaves out the part where DOMA deprives same-sex couples legally married in those states of such federal entitlements as spousal Social Security benefits, and demands a tax penalty on the estates of deceased spouses of same-sex couples before those assets pass on to the surviving spouse. (The latter is at issue in the DOMA case the court is taking up.) So, it’s hard to see how even a right-wing majority could uphold DOMA as constitutional. That’s where Prop 8 comes in, and why I fear jurisprudential mischief.

When California voters passed Proposition 8 in 2008, it effectively overturned a state Supreme Court decision that legalized same-sex marriage in the land of endless summers. The 9th circuit overturned Prop 8, but that judgment has been on hold pending action by SCOTUS.

The legal issues involved are complicated beyond my limited level of expertise, but they involve first a question of whether or not Prop 8 proponents have standing before the court, and then, if decided on the merits, could yield a complicated patchwork of marriage-equality oases in the SunshineGolden State — presumably cities that had issued marriage licenses to same-sex couples before Prop 8 — while the rest of the state closed the chambers of Justices of the Peace to those seeking to wed a person of the same sex.

Lyle Denniston writes at SCOTUSblog:

The merits argument, if the Court does get to it, is whether the Constitution’s Equal Protection Clause bars California granting homosexual couples a right to marry then withdrawing that right, or more fundamentally from defining marriage as the union of a man and a woman. If the Court were to rule that the Constitution does not impose a bar to California’s actions, that would mean that states were free to maintain traditional marriage restrictions — provided that they did not discriminate on the basis of a forbidden category of citizens.

I get the willies a lot when it comes to wing-nut justice, so perhaps I’m just being a nervous Nelly here. But I can’t help but recall the diabolically genius decision of the Roberts court on Obamacare, where the mandate that so vexed the Tea Party was upheld, but the expansion of Medicaid (the insurance program for poor people) that was part of the bill was compromised. How the erosion of that structural underpinning of the program will ultimately play out remains to be seen.

Given the extraordinary results of marriage-equality referenda in the 2012 election — four states said yes — and the propensity of the right wing for sore-loserdom, perhaps I might be forgiven my anxiety.


  • c u n d gulag on December 08, 2012 10:56 AM:

    Yes, there's cause for concern.

    All Conservatives are ratfecker's.
    They learned their ratfeckin' at the feet of 'The King of the Ratfecker's,' Richard Nixon!

    And, when given a chance to feck a rat, how can a Conservative ratfecker decline, and leave that rat unfecked?

    They will find some way to srew-up the wheels of progress.
    THAT is what Conservatism is, after all - to slow progress down by any means possible.
    The only question is, will they use sand in the gears, or throw an entire set of wrenches into the works?

    I won't feel better until President Obama, hopefully, gets a chance to replace at least one of the 'Last Angry Men" who hold up progress with their wrinkled, age-spotted, and arthritic hands.

  • c u n d gulag on December 08, 2012 10:59 AM:

    And I don't even want to think about where Clarence Thomas's hands have been.

  • janinsanfran on December 08, 2012 11:14 AM:

    Glad you emphasized that DOMA is NOT some meaningless policy statement reaffirming homophobia. DOMA creates specific, real disabilities every time a partnered gay person interacts with the Feds. For an example, here's what happened when I went on Medicare.

  • castanea on December 08, 2012 11:28 AM:

    I get annoyed at emoprog whining about Clinton's signing DOMA into law.

    DOMA passed Congress by overwhelming veto-proof majorities a few weeks before a presidential election. Even liberal icon Sen. Paul Wellstone voted for the bill.

    No sane politician up for election would have voted against it or vetoed it, unless s/he was in a safely liberal district or state.

    I know emoprog types love nothing more than to whine how they've been betrayed by Democrats, but there comes a time when you need to base analysis on political reality, not political fantasy.

  • Kathryn on December 08, 2012 11:32 AM:

    Often wonder why folks seem to think that Pres. Obama will have several Supreme Court appointments coming his way, hope you're correct. I see Justice Bader-Ginsburg leaving for health reasons for one and thankful Barack Obama will be there to replace her. I guess Kennedy is a possibility, which would be great. IMO, Scalia will leave when someone pries his cold dead hands off the gavel, the other three aren't going anywhere for sure.

  • Joe on December 08, 2012 11:35 AM:

    California is the Golden State. Florida is the Sunshine State I believe.

  • Adele Stan on December 08, 2012 11:53 AM:

    Yikes, Joe, you're right! Correcting now.

  • Citizen Alan on December 08, 2012 1:01 PM:

    I'm always annoyed when people castigate Clinton for signing DOMA. Aside from the fact that it passed with a veto-proof majority, as Castanea noted, attacking Clinton for a position reluctantly taken in 1996 ignores the breath-taking pace of acceptance of gay rights in this country in less than two decades. DOMA came only two years after "Philadelphia," three years before "Boys Don't Cry," and a decade before "Brokeback Mountain." "Will & Grace" was still two years away. Ellen, Rosie and NPH were all still firmly in the closet. All DOMA did was codify both the existing state and federal law and, more importantly, the national consensus on gay marriage at the time, and it did it without closing the door to individual states allowing for gay marriage and for Congress to later revisit the issue. I honestly believe that if Clinton had pushed back hard enough on gay marriage (and relatedly, on gays in the military) and made it clear that promoting gay rights would be a major part of his agenda, we very likely would have gotten a federal Marriage Amendment as part of the Constitution.

  • Bill D. on December 08, 2012 1:53 PM:

    California is not "the land of endless summers". While most of the state has fairly to very mild winters by eastern standards, almost every weather station here has gotten below freezing one time or another. Probably 90% of the state gets at least a little frost every winter. Here in northern California, average daily highs in winter tend to be in the 50s, certainly mild but not "summer".

    A substantial fraction of the state gets snow every winter and California's more northerly mountains are among the snowiest in the nation. The record snowfall in California for one winter was 884 inches (no, that is NOT a typo); see http://www.thestormking.com/Weather/Sierra_Snowfall/sierra_snowfall.html.

  • skeptonomist on December 09, 2012 2:38 PM:

    The fate of intrasexual marriage will not necessarily be decided by the Supreme Court; they will only decide whether the constitution guarantees that any kinds (and any number) of people can marry each other. Chances of this do not seem great, but if it fails the people can authorize or prohibit any kinds marriage they want. Prospects for eventual authorization of two-person intra-sexual marriage actually seem good now.

    If I were a Supreme Court justice I would have a hard time saying that the Constitution guarantees that any two people - and only two people - can get married, but that polygamy is not allowed. How would you do it?