UNITED STATES: by Terri M. KelleherNews Weekly
US Supreme Court's assault on traditional marriage
, July 20, 2013
A crucial section of the United States’ 1996 Defense of Marriage Act (DOMA), which defines marriage as between “one man and one woman”, has been ruled unconstitutional by the US Supreme Court.
The court’s ruling, which was passed by a narrow 5-4 majority, was one of two controversial decisions it brought down on June 26.
On the same day, the Supreme Court, differently constituted, effectively overturned California’s Proposition 8 (Prop 8), which amended the Constitution of California by popular referendum to define marriage as the union of one man and one woman.
The DOMA was enacted in the first place because there was concern among citizens of some states, which supported marriage as the union of one man and one woman, that, because the US Constitution requires every state to give “full faith and credit to the public acts, records and judicial proceedings of every other state”, federal courts of unelected judges could force them to recognise same-sex marriages performed in other states.
So in 1996, with bipartisan support, Congress passed the DOMA to define marriage as between one man and one woman. The then Democrat President Bill Clinton signed it into law. The Obama administration at first supported DOMA, but then declined to defend it when it was challenged in court.
There was no need for the Supreme Court to make any ruling in the DOMA case as to the constitutionality of the definition of marriage. The parties were not in dispute about the issue.
When the defendant, on the death of her lesbian partner whom she had “married” in Canada, sued the US Treasury in order to receive an estate tax rebate available to married couples, the Treasury agreed she should receive the rebate.
Yet, despite the agreement arrived at by the two parties, the Supreme Court still found there was a dispute which it believed it could and should resolve. The result was to strike down the DOMA defence of marriage as between one man and one woman.
In the Supreme Court ruling on California’s Prop 8 case, however, where the issue was certainly in dispute and vigorously contested, the court declined to even hear the merits of the arguments, throwing the case out on the grounds that the parties bringing the action did not have sufficient “standing” to warrant a hearing. The Supreme Court then reinstated a lower court decision that had overturned Prop 8, thereby letting same-sex marriage resume in California.
Californian voters passed Prop 8 in 2008 a ballot initiative procedure designed to enable the people to reverse the acts of public officials which they deemed unacceptable.
The Californian Attorney-General then refused to defend Prop 8 after it was challenged and overturned by a District Court. The Prop 8 sponsors appealed to the California Court of Appeals and won, and Prop 8 was reinstated.
The same-sex marriage proponents then went forum-shopping and took that decision on appeal to the federal Supreme Court, which on June 29 ruled that the Prop 8 sponsors defending the case did not have sufficient standing to present their side of the case.
The Supreme Court also ruled supporters of traditional marriage had no standing before the California Court of Appeals either, so the decision of the lower District Court overturning Prop 8 in the first instance was effectively reinstated.
The US Supreme Court, then, has effectively overturned the will of the people on a technicality.
There is a huge contrast in the way these two cases have been handled. In the DOMA case, the Supreme Court usurped the power of the people, as exercised through their representatives in Congress in 1996, by striking down Section 3 of DOMA as unconstitutional, even though there was no controversy between the parties for the court to decide. The question of standing was lightly passed over.
In the Prop 8 case, on the other hand, the Supreme Court effectively permitted the lower court decision to override the will of Californian voters, as expressed in the 2008 referendum, by ruling that the defendants lacked sufficient standing.
In his dissenting judgement in the DOMA case, Justice Antonin Scalia, the longest-serving justice currently on the Supreme Court, wrote a dissenting judgement lashing the court’s ruling as “an assertion of judicial supremacy over the people’s representatives in Congress and the Executive”. He said, “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.”
Elsewhere, Justice Scalia expressed his opinion that the Supreme Court had no power under the Constitution to invalidate two democratically-adopted laws, the DOMA and Prop 8.
The Supreme Court decisions fly in the face of the majority vote of the people in 31 states of the US in support of marriage as the union of one man and one woman, and of the fact that 38 states have enshrined that definition of marriage in their constitutions.
Conservative commentator and founder of the Eagle Forum, Phyllis Schlafly, who wrote The Supremacists: The Tyranny of Judges and How to Stop It (2004; revised and expanded edition, 2006), commented on July 3: “The ruling (in the Prop 8 case) defeated the whole democratic process of a citizen initiative because it enables public officials to overrule the will of the voters … by simply refusing to defend the law in court. The 27 other states that use initiatives will now be worried about their validity.”
The thing that has concerned many Americans about the Supreme Court’s DOMA ruling is that it can be used to strike down, state by state across the US, state constitutional amendments banning same-sex marriage.
In late May, American supporters of traditional marriage had been celebrating a significant victory in Illinois. A bill to redefine marriage failed to get the requisite numbers to be voted upon in the state’s legislature, thus preserving marriage as the union of a man and a woman.
Illinois is a strongly Democratic state, and same-sex marriage proponents considered it would almost certainly pass legislation redefining marriage.
Brian Brown, president of the National Organisation for Marriage, remarked afterwards: “So much for the inevitability of gay marriage.… This is a huge victory at a pivotal time, and totally undercuts the lie that same-sex marriage is inevitable.”
In the legislature — the democratic forum — supporters of traditional marriage win more often than do the same-sex marriage proponents.
However, those legislative victories are being undermined in the US by the judicial activism of unelected judges overriding by judicial fiat the will of the majority of the people.
Terri M. Kelleher is Victorian president of the Australian Family Association.