Wednesday, June 26, 2013

Supremes Strike Down DOMA!

The US Supreme Court has ruled in the US v Windsor case that questioned the constitutionality of the Defense of Marriage Act (DOMA). As predicted during the oral arguments, the US Supreme Court has ruled DOMA is unconstitutional under the 14th Amendment's fair and equal treatment/application of the law.

The high court's decision did not directly address the 10th Amendment facets of the debate, perhaps reserving that for their opinion in the case addressing California's Proposition 8.

   1. This Court has jurisdiction to consider the merits of the case. This case clearly presented a concrete disagreement between opposing parties that was suitable for judicial resolution in the District Court, but the Executive’s decision not to defend §3’s constitutionality in court while continuing to deny refunds and assess deficiencies introduces a complication. Given the Government’s concession, amicus contends, once the District Court ordered the refund, the case should have ended and the appeal been dismissed. But this argument elides the distinction between Article III’s jurisdictional requirements and the prudential limits on its exercise, which are “essentially matters of judicial self-governance.” 
   2. DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. Pp. 13–2

However, one portion of Kennedy's majority opinion strongly indicated that marriage is a state responsibility and beyond the scope of federal authority, invoking the spirit behind the 10th Amendment (emphasis added):

The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. See Williams v. North Carolina, 317 U. S. 287, 298 (1942) (“Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders”). The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the “[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.” Ibid. “[T]he states,at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce. . . [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.”

As expected, Justice Kennedy opined with the more "liberal" justices in a 5-4 split decision. Kennedy delivered  the majority opinion. It appears as though the dissenting justices each filed their own dissenting opinion. 

History of DOMA

DOMA was passed with bipartisan support as part of a deal to pass the controversial "Don't Ask, Don't Tell" law that allowed for homosexual service in the military. Gleefully, liberal president Bill Clinton signed DOMA into law without any reservations. During the debate and controversy leading up to DOMA's passage, Clinton openly advocated the bill.

The irony is that Clinton is a hero and champion of  the political ideologies falsely believed to more advocate same-sex and gay collective rights.

The Future of Same-Sex Marriage

The future is uncertain. The decision in Perry v Hollingsworth, which opines California's Prop. 8, vacates the federal decisions and remands the decision to the state-level courts.

How this decision on DOMA applies, however, is clear. States that legalized same-sex marriages may continue to perform them. States that have them banned can still continue to deny marriage licenses for same-sex couples.

What it does mean, however, is that same-sex marriages will be recognized as legal at the federal level. For federal tax purposes, those legally married in a state that allows them, same-sex couples may file as married. The same goes for federal survivor benefits under Social Security and Veterans' benefits. The same goes with every federal program to include subsidies.

The states, however, at this time may not affect state laws. That means that state-level programs may still exclude same-sex couples from those programs. In fact, Kennedy's opinion clearly states that it is the right of each state to legislate and adjudicate (courts) its own marriage laws.

So, for states that legalized same-sex marriage, those couples have the provisions those states allow. For those states that do not, the couples married in same-sex states who then establish residency in non-same-sex states enjoy only the federal level provisions.

The future is a step towards acceptance. But it now is remanded to a state-level issue to determined in each of the 50 sovereign states, individually.