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The Supreme Court Rulings on DOMA And Prop 8: Everyone Deserved Better (Forbes.com) June 27, 2013

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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It is often said that hard cases make bad law, and today’s twin Supreme Court opinions about same-sex marriage—the Windsor case holding the federal Defense of Marriage Act (DOMA) to be unconstitutional and the Hollingsworth decision, rejecting the appeal of a lower court’s declaration that California’s Proposition 8 is unconstitutional—prove that point once again.

Having waded through today’s two decisions and multiple dissents, I find myself most strongly in agreement with the final line of Justice Scalia’s lengthy dissent in the DOMA (Defense of Marriage Act) case: “[T]he 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.”

While these decisions are being widely proclaimed as victories for same-sex marriage, that is a superficial view of what was decided and, perhaps as important in Supreme Court cases, how it was decided. To peel back the several layers of these complicated opinions, we should consider three different levels of analysis: (1) the constitutional questions, (2) the legal process issues, and finally (3) the social and political matters.

Perhaps naively, many hoped for some definite constitutional answers to the questions raised in these cases but today’s opinions disappoint here. Those who brought the California case hoped the Court would say Proposition 8, defining marriage as between a man and a woman, was unconstitutional on equal protection grounds, at least for California if not for all states. Instead the Court based its decision on narrow rules of legal standing. Those who defended DOMA in court hoped for a win for the traditional view of marriage, or at least a declaration that marriage belonged to the states and that DOMA was unconstitutional as a matter of federalism. But that didn’t happen either. Instead the Court cooked up a confusing stew of 5th Amendment due process rights, augmented by some standards of 14th amendment equal protection and a little substantive due process thrown in to justify its decision that DOMA is unconstitutional. This was hardly the kind of important constitutional decision either proponents or opponents of same sex marriage hoped for, and is instead a disappointing and confusing opinion with a kind of interim (we’ll have to clean this up later) feel.

Both decisions spent a frustrating amount of time on questions of legal process, especially who has standing to raise matters before federal courts. Since the government of California refused to defend Proposition 8 in court, the California Supreme Court ruled that proponents of the initiative could do so. But the Supreme Court rejected that, denying the appeal because no one had standing to challenge the lower court’s decision. That seems not only frustrating but bad law in that, in the end, no one was left able to bring a legal challenge to the district court’s opinion finding Proposition 8 unconstitutional. That seems like a bad result in both process and outcome. What we did learn again is that Justice Roberts is not really a constitutional conservative, but is a process conservative. If he can find a way to deal with a case by fiddling around with the rules (recall his creative rewriting of the healthcare law to salvage it?), he will resolve things that way, rather than on the merits. That has to be disappointing to conservatives for the long haul.

Finally, what does this mean for the social and political questions surrounding gay marriage? Two things are obvious: Proposition 8 is unconstitutional in California, as decided by the lower federal court (not the Supreme Court), and gay marriages there can go forward. And the federal Defense of Marriage Act cannot be used in states that decide to have gay marriage to deny full federal benefits (taxation, etc.) to those in such a union there. In that sense, it is a gain for the same sex marriage movement, but it mostly leaves the rest of it up to the political branches, not primarily to the courts.

So who are the winners and losers in today’s decisions? The traditional marriage people lost more than they gained, especially when the court went out of its way in the DOMA case to say there was no legitimate legal ground for that bill ever, a conclusion that, if you understood the state of the law and culture when it was adopted and signed in the 1990’s, is patently absurd. States also took it on the chin—while the court gave several pages of lip service to the role of states in marriage, it didn’t allow anyone in California to defend its own constitution, overriding the California Supreme Court’s own view of that question of state law. In my view, the good news today is that the court ended up taking a fairly modest role, leaving continued developments on same sex marriage to occur in the political branches and state governments where they belong.

But in the end, everyone deserved a better and more coherent message than came from these highly anticipated Supreme Court opinions.

Link to Forbes.com: http://www.forbes.com/sites/daviddavenport/2013/06/27/the-supreme-court-rulings-on-doma-and-prop-8-everyone-deserved-better/

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