The Confusion of the Supreme Court

By now you know that the Supreme Court struck down section 3 of the federal Defense of Marriage Act (DOMA) in the case United States v. Windsor.


While this was one small step for the Supreme Court, it represents one giant leap for make-it-up-as-you-go judicial decisions and exposes the fact that the Supreme Court is not inoculated from the hyper-political, cultural debate surrounding marriage.  


Proponents of natural marriage feared that the Supreme Court would issue a Roe v. Wade of marriage by declaring a constitutional right to marry someone of the same gender and removing the debate from the political process. In some ways, however, this case could be worse than Roe because of its incoherence.


Typically, the Supreme Court gives a real life, legal reason for its decisions. But in this case, the Court did what all good politicians do -- use a large number of words to say nothing useful all in the name of getting what you want.


Here are the legal arguments the Court didn’t use to support their conclusion that DOMA is unconstitutional.


First, the court refused to say there is a constitutional right to marry someone of the same gender.  This is significant because the primary political argument of those wanting to redefine marriage is that “marriage equality” is a constitutional right.  Even this court acknowledged that isn’t the case, though I doubt the legal reality will catch up with the campaigns any time soon.  Why let reality get in the way of a good slogan?  Strike one.


Second, the court did not say DOMA violates the equal protection clause of the 14th Amendment.  They certainly discussed the equal protection clause and leaned heavily on some amorphous concept of equality.  However, they refused to go down the well-worn path of equal protection analysis to determine whether DOMA violated it because they knew that they would not find what they were looking for-a reason to throw out DOMA.  Strike two.


Third, the court did not say DOMA violates the Fifth Amendments due process clause.  Due process is the idea that government can’t deny liberty without due process.   Much of the commentary about this case suggests that the Fifth Amendment is the justification the Court used, but in reality they declined to do so.  The majority acknowledged the precedent saying that due process protects substantive rights only when they are deeply rooted in our nation’s history and traditions.  That clearly excludes same-sex “marriage”, which had never existed in any jurisdiction on the planet prior to 14 years ago.


It is the opposite of a deeply rooted substantive right. Strike three. 


Fourth, the court did not say that DOMA violates family law jurisdiction. The opinion begins with a red herring discussion of the fact that family law has historically (but not exclusively) been left to states.  The implication the court wanted to create is that DOMA, from its origin, was an overreach of federal power into state matters. Yet it refuses to strike DOMA down on that basis.  Why?  DOMA has never had any impact on state family law and they know that.  To the contrary, it controls only how the federal government allocates federal money and benefits when it comes to marriage, which is clearly within Congress’ power.   Strike four?


So, if there is no constitutional right to same-sex “marriage”, if DOMA doesn’t violate equal protection or due process, nor does it overreach into the state’s domain of family law, then why did they decide that it was unconstitutional for Congress to define marriage as a relationship between a man and a woman and still allow the states to do so? 


Because they wanted to.


What is obvious in their language is that they like same-sex marriage. So in place of legal arguments, the Court relied entirely on its belief that their position on gay marriage is morally superior to that of Congress circa 1996.


From their perspective, DOMA must have been motivated by a “bare desire to harm,” or “to disparage and to injure.”  They further explained that its sole purpose and effect is to “impose inequality,” to deny “equal dignity,” and “humiliate.”


What more of an explanation do you need, bigot?


In the place of legal reasoning, the court effectively creates a precedent for doing whatever it want so long as it feels justified.  If you are more interested in the outcome than respecting our separation of powers, that’s precisely what you were looking for. Lawsuits claiming state DOMA’s are unconstitutional have repeatedly failed because there is no legal precedent to support their position.  However, new legal challenges to state DOMA’s are likely to ensue and we can be sure that those lawsuits will quote liberally from the majorities’ sermon/opinion in this case.  


The strange scenario they left us with, in which federal tax law is now different from state to state, and where it is constitutional for a state to define marriage as a relationship between a man and a woman but unconstitutional for Congress to do the same, is the work of a political body trying to reach a political outcome.   The problem is, that isn’t what the Supreme Court is supposed to do.


All the while, they assure us that they were not trying to say that there is a constitutional right to same-sex “marriage”. 


Justice Scalia’s response to this position in his dissent will close this discussion well:


“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.”






Posted by loverofGod on July 8, 2013
The court was using very strange reasoning in its declaration of part of DOMA as unconstitutional. Looking at the dissents was helpful. There are definite legitimate reasons for DOMA not motivated by animus (which were not even addressed in the majority opinion), and no "right" of SSM in our recent history and tradition, and also the court really didn't have the position to intervene at all in this matter. Just a sign of the corruption of politics. But, Christians, be encouraged to run the race! The Bible says we can hasten His return. Why not give ourselves to grow in Christ and help others to do the same? Let's pray to bring in the next revival and bring Christ back. His kingdom will end all this unrighteousness. Our sighing and being anxious about the coming persecution won't help much in this matter. Till He comes, we need to occupy ourselves with profitable matters.
Posted by Kenneth E. Crider on June 28, 2013
People should not be interested in comments and opinions which are nothing but excuses for thier self indulgence. If you should even have any desire at all for what! are who? is the truth about all matters of life then you can read about in the BIBLE. You can know it are you can blow it off.Nevertheless no man or womens talk will not change the truth of GOD WHO IS LOVES WORD. READ THE 1st CHAPTER OF THE BOOK OF ROMANS. You WILL find it in context. "WAKE UP TO THE TRUTH FOR YOUR OWN SAKES!". K.E.C.
Posted by ron mack on June 27, 2013
It appears, and is validated by Justice Scalia's scathing dissent, that we have just lost another leg of our 3 legged democracy of shared and separate powers and are moving rapidly toward the socialist state we feared!
Posted by Paul on June 27, 2013
I'm no fan of homosexuals marrying, but "make-it-up-as-you-go judicial decisions"? I think not. It has never been within the purview of the US Federal Government to regulate Marriage. What you are suggesting is that we "make-it-up-as-you-go" to satisfy political sentiment and animus. We should not.
Posted by Oshtur on June 27, 2013
Not sure why you are saying some of what you do, in the ruling syllabus it clearly says: "DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment." And this isn't about equal protection of 'same sex' marriage, but simply marriage. If a state licenses the contract the Feds can't pick and choose which ones it will acknowledge - marriage contract, fishing license, whatever. The 'long held tradition' is that states determine who does and doesn't qualify for licensing. That being allowed the Feds can't discriminate further. That's all the DOMA ruling is, making sure the Feds don't ignore just citizens with completely valid contracts. In 20/20 hindsight, what could have been done differently to have gotten the result you want? Avoided a 5th violation by ignoring all marriage contracts from states that allow same sex registration? Passing a federal marriage amendment, taking the right to decide who can register out of the hands of the state? But those things didn't happen and that's why this unconstitutional provision of DOMA fell.
Posted by NANCY KASPER on June 27, 2013
What we have in this country is an unsolvable dilemma unless there is a great Christian revival. We have a weak-in-character, largely ignorant, rebellious, self-centered electorate voting for whoever strikes their fancy and will promote their personal agenda. We have elected and appointed leadership in all three branches of the government that fit the profile of the electorate and besides being corrupt, out of control, and without shame, disrespect and mock any beliefs that are not their own so that there are no longer opportunities for wise discourse and debate. And the balance of power is gone. The public education system has failed to teach our young people how to discern fact from opinion, truth from a lie, and why the historical freedoms we have under the Constitution are so precious and must be preserved. Top that off with a lack of decency, moral integrity, and knowledge of and obedience to God's Word, including a severe deficit of godliness within most churches, and we have a disaster. The United State is imploding from within. And now we see a politically correct tolerance for destructive behavior and groups of individuals who have no intention of contributing to the welfare of our nation but to harm it. (Which is why we now have criminal record illegals and Islamist extremists being allowed and welcomed into our borders.) Satan is winning on all fronts, and he is able to distort and turn upside down just about anything because the people are lazy and apathetic, foolish, and too often stoned or drunk. Look at the voting majority in Washington state who ushered in the legalization of marijuana! What does that tell you? Without God, there is no hope. America has strayed so far from God's will, plan, and standards that it is likely irrecoverable. The arrogance of the justices who swayed these Supreme Court decisions should be reason for us to fall on our knees and ask God for his help. And we must stand up for what is right and not cower to the bullies whom we have allowed to take over our government due to our fear, negligence, and sinful ways. The time for repentance is at hand. After reconciliation with God, we must express our dissent as our forefathers did until it is heard.
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