DOMA is DOA

Posted by Post Scripts   @   26 June 2013 14 comments

by Jack

The news came as no surprise to me, the Defense of Marriage Act is dead.  The LDS chruch had this to say, “By ruling that supporters of Proposition 8 lacked standing to bring this case to court, the Supreme Court has highlighted troubling questions about how our democratic and judicial system operates. Many Californians will wonder if there is something fundamentally wrong when their government will not defend or protect a popular vote that reflects the views of a majority of their citizens.

“In addition, the effect of the ruling is to raise further complex jurisdictional issues that will need to be resolved.

“Regardless of the court decision, the Church remains irrevocably committed to strengthening traditional marriage between a man and a woman, which for thousands of years has proven to be the best environment for nurturing children.  Notably, the court decision does not change the definition of marriage in nearly three fourths of the states.”

Most news pundets agree that it was bound to happen anyway, if not today, then tomorrow.  The youth of today are rallying behind this issue as activists did in the 50′s-60′s for black civil rights issues.  It’s all part of the changing values in America. 

 

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Jun 26, 2013
12:46 pm
#1 Chris :

DOMA was clearly unconstitutional on states’ rights grounds anyway. States have always had wide discretion in making marriage laws. In some states, first cousins can marry, and those marriages still get federal benefits. So-called “small government” con
servatives, who are usually in favor of states’ rights, should support the decision to strike down DOMA.

Jun 26, 2013
1:00 pm
#2 Chris :

“marriage between a man and a woman…for thousands of years has proven to be the best environment for nurturing children.”

I 100% agree with this statement by the LDS church.

However, it has 0% to do with the issue of same-sex marriage.

1. Gay couples are already allowed to adopt and raise in most states, even where same-sex marriage is not recognized.

2. Many gay married couples won’t choose to raise children.

3. Gay couples are not out there kidnapping children from their happily married biological parents. Any child being raised by a gay couple has already lost the opportunity to be raised by their birth parents long before they were adopted by the gay couple.

4. We allow single people to adopt and raise children as well.

5. We allow people to re-marry even though we know children raised in homes with step-parents don’t do as well as children raised by their married biological parents.

The “best interest of the children” argument is a red herring. It’s persuasive to many precisely because it doesn’t mean anything in the context of the actual debate, so no one can really disagree with it. It’s lipstick on a pig. Recognizing gay marriage does absolutely NOTHING to interfere with any child being raised by their biological parents. Likewise, preventing gay marriage does absolutely NOTHING to ensure children will be raised by their biological parents. All it does is ensure that those children already being raised by gay couples will not have the stability and security that having two married parents would provide.

Jun 26, 2013
1:05 pm
#3 Post Scripts :

Yes, SCOTUS, affirmed in the most clear terms, this was a State’s right issue.

Jun 26, 2013
3:27 pm
#4 Peggy :

I’m confused. I thought our constitution says, “We the people.” Didn’t a majority of the people of California vote to not participate in same-sex marriages?

So, how can the State decide to not uphold what the “people” voted for and how can the Supreme Court refuse to hear the case because it was brought by the very same “people” who are demanding that the State do what the people voted for.

I don’t understand why it was referred back to the very same institute that violated the law in the first place. So, a state can break any law they don’t like not matter what the voters of that state want.

Let me be clear I believe an individual should be able to marry who they want per our Bill of Rights. It is a civil rights issue. I shouldn’t be able to tell someone else how to live their life, but they also should not be able to tell me how to live mine.

But, I’m afraid the pendulum will now swing the other way and law suits will now be forthcoming forcing churches to perform same-sex marriages when they don’t believe in them. Afraid the writing is on the wall after what took place with the Catholic church after ObamaCare was passed.

Jun 26, 2013
3:29 pm
#5 Tina :

Congratulations Chris. I’m sure you feel very good about the courts ruling today.

From my perspective the court managed to step down from the lofty rarefied air within which it was originally charged to operate, a space free of emotional or political influence, to call the creators and defenders of DOMA a bunch of bigots!

And of course with the courts blessing it might as well be the law of the land that Christian traditionalists will be considered, if not legally then morally, less than worthy of respect.

Kennedy:

“DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages.”

He should have stopped there. That statement is unemotional, nonpolitical, and very clear. It addressed the real problem which is that federal regulations and entitlement laws discriminate.

But he went further:

“This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”

In his dissent Justice Scalia chides his fellow justices:

“It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement [for the states] to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it.” “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”

This ruling contained an activist opinion that offers moral authority for gay marriage proponents to further debase and stigmatize those who support traditional marriage. Radicals…you can always count on them to act differently from their professed platform!

I would feel a lot better today if in the majority opinion the court had refrained from taking an activist position in it’s determination. But as we now know, the fundamental transformation of the US is the highest priority of this administration, it’s very spendy contributors, and its allies in the IRS, FBI, BATF, EPA, HHS, NSA, OSHA, SEC…and the Supreme Court!

The group of old, bald, white dead guys that are so admired by the left have won another round…Marx would be so proud! In the Communist Manifesto, Marx wrote openly of the “abolition of the family” and of communism abolishing “eternal truths” and “all religion, and all morality.” The left just marches on stomping on every standard. Those who live in freedom because of the wisdom of our old, bald, white guys fail to see the wisdom of a standard.

In America people are free to live as they choose. Their homes have always been their castles. However, we have also upheld standards that promote civility in our society.

It would be more consistent for our government, and the court, to get completely out of the control of marriage business…and the entitlement business!

The perceived discrimination that is at the heart of this push was not made by traditional marriage or traditional marriage proponents but by the many federal regulations that excluded those who choose to live outside the standard.

Which aggrieved group will be next to step up next demanding fairness?

How many roommates will now “get married” just for the great benefits?

How complex will the laws and regulations become as people step forward to demand similar special considerations?

What is the added dollar amount that this change will mean?

Well…the court has made its determination. The young will get to live with the world they are hell bent on creating in this fundamental transformation and marriage isn’t the only transformation in their dreams. I am ready to move on.

Jun 26, 2013
5:15 pm
#6 Tina :

Peggy I was confused about this ruling too. Ken Klukowski at Breitbart might have the answers for you:

Proposition 8 is the amendment to the California Constitution that defines marriage as the union of one man and one woman. A federal trial judge–Vaughn Walker–held that Prop 8 violates the Fourteenth Amendment of the U.S. Constitution.

On Wednesday, the Supreme Court held that only the losing defendants in that case–the governor and attorney general of California–had standing to appeal that decision. When they refused to do so, Prop 8′s official sponsors filed the appeal with the U.S. Court of Appeals for the Ninth Circuit, and pursued it all the way to the Supreme Court.

Since the official sponsors lacked standing to defend Prop 8, the Supreme Court refused to rule on the merits, and also vacated (i.e., threw out) the the Ninth Circuit’s decision.

But that means Prop 8 is still the law in California. Section 3.5 of the California Constitution specifically commands:

An administrative agency … has no power:

(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;

(b) To declare a statute unconstitutional;

(c) To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations.

As of today, there is no appellate opinion (meaning an opinion issued by a court of appeals) against Prop 8. The Supreme Court refused to issue one, and threw out the only other one (the Ninth Circuit’s). There is only a trial court opinion. So every agency in California is legally bound to regard Prop 8 as binding law.

Since no one who wants to defend Prop 8 has standing to appeal rulings on it to the Ninth Circuit, there will never be such an opinion in the federal court system. So the only way to get an appellate opinion would be in the California state court system. So someone would have to file a lawsuit regarding Prop 8, and then appeal it to a California court of appeals and then maybe to the California Supreme Court. Only when one of those courts hold Prop 8 unconstitutional can the public officials in that state regard it as stricken from the books.

That litigation could take years. And in the meantime, supporters of traditional marriage can continue making the case for marriage.

And so the struggle continues.

Jun 26, 2013
6:18 pm
#7 Chris :

Peggy: “I thought our constitution says, “We the people.” Didn’t a majority of the people of California vote to not participate in same-sex marriages?”

Yes, but the constitution also says “equal protection,” and it gives the Supreme Court the authority to rule on whether a law violates that or not. The majority of people in Southern states during the ’60s opposed integration of schools and interracial marriage, and supported Jim Crow laws. The Supreme Court, fortunately, overruled the will of the people in those instances. That’s their job: to protect constitutional rights of citizens, even if that means protecting a minority from the tyrannt of the majority.

“and how can the Supreme Court refuse to hear the case because it was brought by the very same “people” who are demanding that the State do what the people voted for.”

Because the supporters of Prop 8 lacked standing. The Chief Justice explains in his opinion:

“For there to be such a case or controversy, it is not enough that the party invoking the power of the court have a keen interest in the issue. That party must also have “standing,” which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit.”

Prop 8 supporters, in their ads during the 2008 campaign, alleged many harms that could come to them if same-sex marriage were legalized. Yet the first time they went to court in California, they admitted that no such harms existed. It’s simple: a ban on same-sex marriage hurts gay people. Allowing same-sex marriage hurts no one. The right choice, on both a constitutional level and a basic moral level, was clear.

“I don’t understand why it was referred back to the very same institute that violated the law in the first place. So, a state can break any law they don’t like not matter what the voters of that state want.”

I am not sure what you mean here. What laws were violated?

“Let me be clear I believe an individual should be able to marry who they want per our Bill of Rights. It is a civil rights issue. I shouldn’t be able to tell someone else how to live their life, but they also should not be able to tell me how to live mine.”

I wholeheartedly agree with you here, Peggy. :)

“But, I’m afraid the pendulum will now swing the other way and law suits will now be forthcoming forcing churches to perform same-sex marriages when they don’t believe in them.”

I’m not sure why you think this. No church in American can be forced to perform ANY wedding they don’t want to. Catholic preists don’t have to marry interfaith couples or couples where one person has been divorced. Churches don’t have to marry interracial couples. There is no grounds to believe that allowing gay marriage means that any church will have to perform them.

“Afraid the writing is on the wall after what took place with the Catholic church after ObamaCare was passed.”

But there’s a significant difference. The ObamaCare issue was over health insurance coverage. Agree or disagree with the mandate, it can at least be argued that requiring employers to cover contraception serves a valid public health purpose. It can’t really be argued that requiring clergy to conduct wedding ceremonies for marriages they are opposed to serves any similar pressing need. The inconvenience caused by a certain pastor or church refusing to marry a couple is relatively minor, and certainly not a violation of anyone’s rights.

Jun 26, 2013
6:40 pm
#8 Chris :

Tina: “From my perspective the court managed to step down from the lofty rarefied air within which it was originally charged to operate, a space free of emotional or political influence, to call the creators and defenders of DOMA a bunch of bigots!”

Where in the court’s decision did they say that the creators and defenders of DOMA were “a bunch of bigots?”

You offer this, from Chief Justice Kennedy’s opinion, as an alleged “activist opinion:”

“This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”

But Kennedy is accurately describing the “avowed purpose” of those who crafted the law. It may be easy to forget now that blanket condemnations of gays are seen as less socially acceptable, but in 1996 lawmakers were very clear in expressing their view that homosexuality was a lesser moral status than heterosexuality. Kennedy even quotes directly from the House Report accompanying DOMA in his opinion, citing the portion that says the law is meant to express “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality…”

http://www.volokh.com/2013/06/26/the-doma-decision-and-federalism/

It was not a secret then that DOMA amounted to a direct moral stand by the government that homosexuality was immoral. The government has no business taking such a position. Kennedy’s decision was not based on an “activist position.” DOMA, itself, was.

It’s ironic that you also write, “And of course with the courts blessing it might as well be the law of the land that Christian traditionalists will be considered, if not legally then morally, less than worthy of respect.”

The court’s decision says no such thing. Giving people the *freedom* to deviate from Christian traditionalist teachings on this issue does not, in any way, imply that Christian traditionalists should be treated with less respect. People having the freedom to do something you don’t like =/= you losing freedom.

But the House Report attached to DOMA shows that the law actually DID single out a class of persons–gays–who were judged, by the power of the government, to be “morally less than worthy of respect.”

To ignore this fact in order to portray Christian traditionalists as being somehow persecuted in service of the gay agenda is, to me, surreal. A class of people was ACTUALLY singled out, unfairly, by the government as being morally unworthy of respect. But it wasn’t Christians. It was gay people.

“It would be more consistent for our government, and the court, to get completely out of the control of marriage business…”

But that’s not at all realistic. There are over 1,138 government benefits of marriage. You will never convince Americans to abandon those.

(Nor, by DOMA defender’s own logic, should you. If you want to promote marriage, you should support the government promoting marriage. You’re just saying that the government should get out of marriage because it sounds good, not because you’ve actually given this any thought.)

“How many roommates will now “get married” just for the great benefits?”

I’m sorry, but this is a silly concern. How many opposite-sex roommates so you think are doing this *now*?

“How complex will the laws and regulations become as people step forward to demand similar special considerations?”

Gay people weren’t demanding “special considerations” though, they were demanding equality. And what people are you referring to?

“What is the added dollar amount that this change will mean?”

It’s actually more likely that this will save the government money and help the economy. Married people are less likely to depend on government assistance, which is one of the reasons the government encourages marriage. And if you actually believed that more people getting married cost taxpayer dollars, wouldn’t you want to discourage straight people from getting married too?

Tina, your arguments show precisely why this decision was made. They are extremely weak.

Jun 26, 2013
9:41 pm
#9 Tina :

Chris: “Where in the court’s decision did they say that the creators and defenders of DOMA were “a bunch of bigots?”

I made that clear in my comment. Sorry you missed it.

“…strong evidence of a law having the purpose…of disapproval of that class.”

So, those who defend/support marriage via DOMA created the law for “the purpose” of “disapproval”

Absurd!

“to impose a disadvantage”

Marriage law does not create a disadvantage. It treats everyone equally. However, all of the government regulations regarding hand-outs, inheritance, and taxes do discriminate and create a disadvantage. Other people will continue to be “disadvantaged” because they too are inelligible for “marriage”.

“…a separate status…”

No more so than marriage law creates a seperate status for single people, widows, and widowers.

“a stigma”

By whose accounting? I never thought of gay people flawed any more than any other human being is flawed…once again the court pretends to have the powers of Carnac the Magnificent to decide the minds and intentions of others to make its ruling.

I think the justices remarks are “evidence” of personal, perhaps bigoted, opinion more than a scholarly opinion. The point was made prior to this totally unnecessary addition!

“Giving people the *freedom* to deviate from Christian traditionalist teachings on this issue does not…”

Giving people “freedom” to “deviate”? They have been “deviating” for centuries without a peep! In fact my recollection is that they were quite proud and satisfied to be “deviating” in complete freedom…one might even say they were, “In your face” about being “different” and proud of their free and “legitimate lifestyle choice”.

This deviation, out of the closet, was tolerated and accommodated in society generally, even by Christian traditionalists, for a number of decades. Legal accommodations were made and supported that demonstrate inclusion, tolerance, and willing acceptance of the deviation and lifestyle choice.

It is only very recently, Chris, that this demand about marriage has been made. A demand that undermines centuries of tradition. A demand that asks an entire nation to adjust its government structure and language to accommodate. A demand that requires definitions of a number of words be changed in hospitals, schools, and other organizations. (Children no longer have a mother and father; they have parent 1, parent 2, and in some cases parent 3….in some instances mother is father and he is called fathers wife.

I’m sorry, it seems like one big horrendous fabrication…a lie…to me.

On a personal level for many this is not about politics or definitions but about love and family. I understand that.

But it is also for many about forcing definitions and twisting meanings. It is about forcing the people to go along with a grand ruse. Children will adjust to what is made real but they also have a built in lie detector. We are asking the children of the country to make a very different relationship exactly the same when clearly it is not.

There are so many ways that feelings and legal conditions could (and should) have been addressed without destroying centuries of tradition and the biological realities of mother and father, husband and wife…and marriage. Respect for others because they are human beings is a broad general rule that speaks the truth and covers many differences in lifestyle choices.

For some (definitely politicians) this is about money and power…and for a few it is about exerting “power over others”. Do not kid yourself for a single moment…for some of the more extreme activists it is about destroying all traces of religious moral teachings and removing them completely from the public square. Christians are, to them, deserving of oppression and repression and they are happy as clams to see this happen…they could care less about love or family!

“in 1996 lawmakers were very clear in expressing their view that homosexuality was a lesser moral status than heterosexuality”

Different IS NOT lesser. A relationship between friends is not lesser; it is different. Divorced people are not lesser but they are definitely different from a married couple. Single parents and their children are not lesser; but they do represent a different family dynamic. A divorcee living with her children is not lesser but the relationships are different than those of a married man and woman. Men and women who shack up are not lesser; they are very different. These are the differences that define traditional marriage just as much as the Biblical word of God, “It is not good for the man to be alone. I will make him a helper suitable for him.’” and “For this reason a man shall leave his father and mother, be joined to his wife, and the two shall become one flesh.”, among others.

A “House report” is not law. If the legislators had intended DOMA to codify gay relationships as “lesser” it would have declared as much. Defense of marriage was the intent.

An Act

To define and protect the institution of marriage.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Defense of Marriage Act’.

SEC. 2. POWERS RESERVED TO THE STATES.

(a) IN GENERAL- Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:

`Sec. 1738C. Certain acts, records, and proceedings and the effect thereof

`No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.’.

(b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item:

`1738C. Certain acts, records, and proceedings and the effect thereof.’.

SEC. 3. DEFINITION OF MARRIAGE.

(a) IN GENERAL- Chapter 1 of title 1, United States Code, is amended by adding at the end the following:

`Sec. 7. Definition of `marriage’ and `spouse’

`In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.’.

(b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item:

7. Definition of `marriage’ and `spouse’.’.

Some dictionaries have now included relationships between same sex couples in the definition of marriage. At the time this law was written you could not find such a dictionary.

My “arguments are weak”.

This is your opinion and you are welcome to it.

I know you have a lot of agreement and support and I know it took changing the opinions of a great many Americans, including many prominent Democrats and the current President to arrive at this historic marker.

I meant it when I congratulated you and said I am ready to move on.

Jun 27, 2013
6:35 am
#10 Chris :

Tina: “So, those who defend/support marriage via DOMA created the law for “the purpose” of “disapproval”

Absurd!”

It’s only absurd if you completely ignore what the people who created the law actually said, in their own words. As I’ve already shown you, the creators of the law were clear that their intent was to express “moral disapproval of homosexuality.” Those were their words. Not mine, not Justice Kennedy’s. What is absurd is for you to claim that Justice Kennedy’s accurate statements about the creators’ intent is somehow “bigoted.”

As usual, in your opinion, the only real bigots in existence are those who point out bigotry.

“A “House report” is not law. If the legislators had intended DOMA to codify gay relationships as “lesser” it would have declared as much.”

That…doesn’t make any sense, and I think you know it. You’re really saying that we can’t look at the creators’ own words, outside of the text of the law itself, to find out their intent? Even though they said, explicitly, that they made to law to express “moral disapproval of homosexuality,” that somehow doesn’t count because it’s not the law itself?

Tina, if it’s so hard for you to make an argument to support your positions that you can’t do so without twisting yourself into a pretzel, then the argument just isn’t worth making.

Jun 27, 2013
9:12 am
#11 Peggy :

Chris and Tina, I understand the Supreme Court heard two different cases. What I don’t understand is why it ruled on DOMA, but rejected to rule on Prop 8. Both were brought forth by individuals, but Prop 8 was rejected and referred back to the lower court’s finding. Therefore, both should have been treated the same.

In the DOMA decision it grants the power back to the states, but the California courts found Prop 8 to be unconstitutional, therefore, will not enact the law passed by a vote of the majority.

Justice Scalia appears to agree with my concerns.

Here are some highlights from the article which I’ve also included below.

“Scalia excoriated Justice Anthony Kennedy’s majority opinion in United States v. Windsor as “rootless and shifting” and held that the court had no standing to take the case.”…..”Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?”

“There is, in the words of Marbury, no “necessity [to] expound and interpret” the law in this case; just a desire to place this Court at the center of the Nation’s life.”

….”And by the way, if the President loses the lawsuit but does not faith- fully implement the Court’s decree, just as he did not faithfully implement Congress’s statute, what then? Only Congress can bring him to heel by . . . what do you think? Yes: a direct confrontation with the President.”

“For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations—initially fooling many readers, I am sure, into thinking that this is a federalism opinion. But we are eventually told that “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution,” and that “[t]he State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism” because “the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.”

12 of the Most Cutting Highlights From Justice Scalia’s Angry Defense of Marriage Act Dissent:

Supreme Court Justice Antonin Scalia’s acerbic style was on full display in his dissent from the high court’s decision to strike down the provision of the federal Defense of Marriage Act denying benefits to married gay couples.

Scalia excoriated Justice Anthony Kennedy’s majority opinion in United States v. Windsor as “rootless and shifting” and held that the court had no standing to take the case. Here are 12 sharp-tongued highlights:

• The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?

• That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.

• There is, in the words of Marbury, no “necessity [to] expound and interpret” the law in this case; just a desire to place this Court at the center of the Nation’s life.

• Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faith- fully implement the Court’s decree, just as he did not faithfully implement Congress’s statute, what then? Only Congress can bring him to heel by . . . what do you think? Yes: a direct confrontation with the President.

• There are many remarkable things about the majority’s merits holding. The first is how rootless and shifting its justifications are. For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations—initially fooling many readers, I am sure, into thinking that this is a federalism opinion. But we are eventually told that “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution,” and that “[t]he State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism” because “the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.”

• My guess is that the majority, while reluctant to suggest that defining the meaning of “marriage” in federal statutes is unsupported by any of the Federal Government’s enumerated powers, nonetheless needs some rhetorical basis to support its pretense that today’s prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term). But I am only guessing.

• Some might conclude that this loaf could have used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due- process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a “ ‘bare . . . desire to harm’ ” couples in same-sex marriages.

• To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions.

• It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.

• By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.

• In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

• Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.

http://www.theblaze.com/stories/2013/06/26/12-of-the-most-cutting-highlights-from-justice-scalias-angry-defense-of-marriage-act-dissent/

Jun 27, 2013
11:27 am
#12 Peggy :

More debate about the Prop 8 and DOMA decision by the SC continues. This is far from being over.

“The morning after two important—and troubling—Supreme Court decisions in the Proposition 8 and Defense of Marriage Act (DOMA) cases, here’s the lay of the land. The important takeaway: The marriage debate is every bit as live today as it was yesterday morning…

Some key numbers following the decisions:
50 The number of states whose marriage laws remain the same after the Court’s marriage decisions.

38 The number of states with laws defining marriage as the union of a man and a woman. That includes California, where the scope of today’s Prop 8 decision beyond the specific plaintiffs will be the subject of ongoing debate and, most likely, further litigation.

12 The number of states that can now force the federal government to recognize their redefinition of marriage. The Court struck Section 3 of DOMA, which means that it must recognize same-sex marriages in states that redefine marriage.

1 The number of sections of the Defense of Marriage Act struck down yesterday (Section 3). Section 2, which ensures that no state will be forced to recognize another state’s redefinition of marriage, is still law.

0 The number of states forced to recognize other states’ redefinition of marriage.

“The important news you may not be hearing is that the U.S. Supreme Court did not redefine marriage across the nation. That means the debate about marriage will continue. States are free to uphold policies recognizing that marriage is the union of a man and a woman, ….

Still, the Court should have respected the authority of California citizens and Congress.
On DOMA, the Court did not respect Congress’s authority to define marriage for the purposes of federal programs and benefits. The Court got federalism wrong.

On Proposition 8, the citizens of California who voted twice to pass Prop 8 should have been able to count on their Governor and Attorney General to defend the state’s constitution. That’s what democratic self-government is all about.”

http://blog.heritage.org/2013/06/27/morning-bell-the-supreme-courts-marriage-decisions-by-the-numbers/

Jun 27, 2013
7:45 pm
#13 Tina :

Peggy thanks, I missed this gem: But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions.

and this: the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat.

The “core” of most litigation of this nature is a relentless radical progressive machine that will never accept the will of the people when it interferes with their demands and goals. The extreme left has no love for our Constitution or the checks and balances in our government structure. Witness the President bypassing Congress to make law through his various czars and them using their newly honed power to harass and punish anyone who might block their progress. Witness Pelosi and Reid writing law in secret and passing it through intimidation and bribes and without actually having read it!

Jun 27, 2013
9:13 pm
#14 Peggy :

Add to his long list his resent threat to go through the EPA to shut down the coal mines. Just heard a guy from W. Virginia on the radio say if those coal miners were smart they’d all go on strike now and cut the country off just so they’d see what it would be like to lose 40% of the electrical power.

The DJ responded that it would be a good idea, except it would be the poor and middle class who would be hurt the most. But, he added, since they’re the ones voting for Obama maybe they’d wake up as to just to see just how much they depend on his “free” handouts and what it would be like to lose them.

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