Yesterday, in the United States v. Windsor, the US Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), which was enacted with overwhelming support by both chambers of Congress, and signed into law by Bill Clinton in 1996. DOMA reads in its entirety,
Section 1. Short title
This Act may be cited as the “Defense of Marriage Act”.
Section 2. Powers reserved to the states
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.
Section 3. Definition of marriage
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.
The rationale for striking down Section 3, as provided in the majority decision written by Justice Kennedy, was that the intention of the law was discriminatory, based upon a hatred of a class of people. He wrote,
The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.
The majority opinion is patently absurd on several levels.
First, there is the fact that it is based on the Fifth Amendment. Here is the Fifth Amendment in its entirety:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
There is nothing in this amendment about marriage laws. Further, nothing prevents homosexuals from getting married: Laws just prevent the legal recognition of homosexual marriage. If a homosexual wants to marry someone of the opposite sex, then there is no legal barrier. If a homosexual couple wants to have a religious marriage ceremony and can find a pastor willing to preside over it, there is also no legal barrier. In every way, then, the homosexual receives the same treatment under law as a heterosexual. In no way are homosexuals being deprived of any right.
Legally, the government has the ability to determine what kinds of marriage it will recognize. If the government wishes to bar 10-year-olds from getting married, it can do so. If the government wants to forbid polygamy, it can do that as well. However, according to the reasoning offered by Kennedy, if the actions of the government have the purpose of “injuring” and “disparaging” others, then they must not be constitutional. Thus, by his reasoning, logically anyone should be able to marry whomever or whatever they choose, without limitation, as the government is constrained from any action which might “injure” or “disparage” them, by enacting marriage laws which they might find inconvenient or distasteful.
If constitutionality is to be determined from now on by what is “injurious” and “disparaging” to individuals, based upon some subjective measure used by a judge, then constitutional restraint has been completely thrown out the window. New constitutional rights will be found hither and thither, according to whatever fancy strikes people, so long as they can find a judge soft-minded enough to agree. This is not rule of law–it is rule of whim.
Second, how can Section 3 of DOMA stand and Section 2 remain intact? If Section 3 is unconstitutional, it follows that Section 2 must be unconstitutional as well. Section 2 was enacted to address the problem of the Full Faith and Credit Clause of the Constitution (Article IV, Section 1):
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
By the logic of the Full Faith and Credit Clause, marriages conducted in one state must be recognized in another state. We were, to be honest, always skeptical that DOMA, Section 2 could withstand constitutional scrutiny, as it appears on the surface to violate the Full Faith and Credit Clause. But, for the moment, Section 2 has been left intact.
However, if laws barring federal recognition of homosexual marriage are unconstitutionally discriminatory, then laws barring state recognition of homosexual marriage must be discriminatory as well. By the logic of his reasoning, not only must states recognize homosexual marriages performed in other states, but any state laws barring homosexual marriage must be unconstitutional. All we are waiting for is a judge to decide this is true–Justice Kennedy has provided all the legal ammunition needed to overturn Section 2 of DOMA and all state laws against homosexual marriage. Logically and legally, these laws cannot stand given this ruling.
As Justice Scalia pointed out in his dissent:
As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.
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.
Justice Kennedy can make the claim that by not striking down Section 2, the majority opinion is somehow limited in scope. However, such a defense of the decision would be either naive or disingenuous. Since all laws barring homosexual marriage are based upon the same definition of marriage that Justice Kennedy finds unconstitutional, those laws must be unconstitutional as well. If the Supreme Court had merely struck down Section 2 on the grounds of Full Faith and Credit, but left Section 3 intact as it is the legitimate role of the legislature to determine marriage laws, that would have been a narrow decision. As it is, the Supreme Court decision effectively makes homosexual marriage the law of the land.
It is only a matter of time.