A huge, huge victory for human rights today in the United States with two decisions from the US Supreme Court. And it means the States is one step closer to joining the civilized world regarding equal marriages.
First, in United States v. Windsor (12-307) the court voted 5 to 4 to strike down the Defense of Marriage Act which defined marriage as one man and one woman, and denied benefits to same sex couples. In this case, a woman who lost her lesbian partner in death (the couple got married in Canada) was stuck with a huge estate tax bill of $363,000 + because she was not eligible for the spousal exemption. Strictly speaking the issue was whether the IRS should give the survivor her money back. The answer has been yes at the District Court and the Second Circuit and that holding was sustained today. But it goes further.
Writing for the majority in a relatively brief 26 page decision, Justice Anthony Kennedy -- consistently the decider in most of the tough cases -- said that DOMA violates states' rights in determining who can get married (noting 12 states and Washington DC already recognize same marriage), noting that the definition of institutions can change over time and are not fixed in stone. The law also violates the Fifth Amendment's protection of due process, and the Fourteenth Amendment's equal protection clause because it forces same sex couples to play by one set of rules at the state level but another at the federal level -- which is precisely the point the opponents of the law have been making all along.
The dissenters said the Court should never have heard the case at all, that they had no jurisdiction to do so (whatever) but even if they were proceeding on the notion they could, that they no authority to interfere with a legitimately passed piece of legislation.
Be that as it may, both sides were extremely critical of President Obama for not having his Justice Department handle the appeal to the Marble Temple instead leaving it to the Tea Party -- but also refusing to direct the IRS to just give the plaintiff (who became the defendant at the appeal level) her money back. In short he was playing it both ways. And on this, The Nine are absolutely right. Barack's approach was in my opinion inexcusable and indefensible, indeed that may have also been a factor in today's ruling. If you are "faithfully executing the laws" it means you fight for the law as is. If you decide you can't support it then you tell your government to do what flows through from not having the law at all.
Second, the Court in Hollingsworth v. Perry (12-144) said that those who were challenging the striking down of Proposition 8 in California had no jurisdiction to file an appeal, once California decided not to appeal (Governors Ahnold and Moonbeam made sure of that). This is because those who drafted the proposition could not demonstrate even plausibly that they were being "injured" by same sex marriage and there did not have an "actual case or controversy."
Effectively, this means Prop 8 is out the window and same sex marriage is legal in California again. The vote was also 5 to 4 but a different majority led by Chief Justice John Roberts (Kennedy wrote the dissent).
But the ruling only applies to California. And as Kennedy wrote, California law does allow a third party to act in the place of the State -- in this case, those who wrote the Proposition -- and therefore the appeal was entirely proper. Not only that but the intiative process that exists in 27 States and the capital, referendums designed to bypass elected officials in the first place, could be compromised if laws passed under such processes were struck down by the courts at the trial, and that any move to defend those laws at the appeals level became impossible because the decisions were immune from challenge. (I know, that's a bit wordy!) By refusing to decide on this one, the majority actually challenges the idea it's The People that directs government and not the other way around.
The implication, to me, is that if this case wasn't DIGged (i.e. Denied for Improvidential Grant of appeal), the Court would have then had to deal with the big issue: Do state bans on gay marriage violate the Fourteenth Amendment? If it had had the guts to deal with the issue at hand now, the answer would almost certainly have been yes, the bans are unconstitutional and there gay marriage should be legal, everywhere. A DIG is basically a cop-out, far as I'm concerned.
So true equality across America will have to wait. Hopefully it won't be more than a few years. In this case, the only way to get a final and definitive win is to have a two track appeal -- gay couples from one Red State and one Blue State where the practise is still outlawed, get appeals court decisions handed down close in time to each other (preferably contradictory ones), then appeal both at the same time to the High Court which would then have to consolidate the cases and decide once and for all.
The result, when it does happen, will be a no-brainer. Equal marriage, at last. And that will truly be a good thing.
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