Catholics who care about marriage and what it means for children and our culture are struggling to understand the future ramifications of the Supreme Court's rulings on Proposition 8 and the Defense of Marriage.
At present, legal experts say that the rulings will have no immediate impact on state constitutional amendments barring same-sex "marriage." But Justice Scalia, in his sharply worded dissent to the majority opinion in DOMA argued that Justice Kennedy's opinion lays the foundation for future challenges to such laws.
Hadley Arkes, a professor of jurisprudence at Amherst College and author of First Things, among other works, noted Justice Anthony Kennedy's opinion in DOMA and his harsh treatment of those who seek to defend traditional marriage, and predicted that the language will be used to overturn state laws banning same-sex "marriage."
Justice Kennedy insists that the decision on Section 3 does not touch Section 2: It does not compel any State to recognize same-sex marriage. But as Justice Scalia quipped in dissent, that claim falls into the list of “bald, unreasoned disclaimer[s].” Kennedy’s opinion will be hauled out in the cases to come to argue that the State has no justified ground for refusing to accept same-sex marriage in its own laws, or crediting the same marriages coming in from other states.
Turning to the Proposition 8 ruling, which found that the citizens group defending the state voter initiative did not have "standing," Arkes predicts that the DOMA decision will also come in handy if Californians try again to bar same-sex "marriage."
All that is left is the holding of the District Court, which covers only the litigants in the case. And the holding has no precedential standing in any other court. And so, would the case cover no one but the litigants, and would Proposition 8 still be on the books? But more “bald, unreasoned disclaimer.” The legislature will take Justice Kennedy’s language in the DOMA case to call into question the standing of Proposition 8 as a constitutional amendment in California. And they may proceed then to legislate again to establish and promote same-sex marriage.
Our friends in the National Organization of Marriage could well be put out of business by the work that the Court today has completed. They may have to think anew on a strategic path once considered and long ago discarded: They may have to ponder again the use of Article V of the Constitution to amend the constitution on the appeal of two-thirds of the states. If we add the number of states that have constitutional amendments now to protect marriage, along with States that have resisted same-sex marriage in their laws, they would be more than enough to call for a constitutional convention to amend the Constitution on this subject.
Helen Alvare, a professor of law at George Mason University School of Law, offered a similar analysis of Justice Kennedy’s majority opinion on SCOTUSblog.
Once the Court decides to “see” opposite-sex marriage definitions as intrinsically hostile and even demeaning to persons wishing to marry another person of the same-sex, the table is already set for same-sex marriage. Justice Kennedy can write that the majority’s opinion has relevance only in situations in which a government decides to disagree with a state’s prior recognition of same-sex marriage, but this is on its face an arbitrary line. If Kennedy and the rest of the majority can discern a “bare desire to harm” in DOMA, they can probably find it in any state marriage law defining marriage as the union of one man and one woman. They can, as they did in Windsor, simply, arbitrarily, choose to ignore states’ essential interests in supporting the only institution that links children with their mothers and fathers.
The New York Times asked Ryan Anderson, the co-author of What is Marriage? Man and Woman: A Defense to size up the rulings.
Anderson was interviewed in this online video, and in a separate post criticized the majority opinion in the Proposition 8 decision, which found that private group of citizens defending the constiutionality of the 2008 voter initiative in court had no "standing." Anderson said it
is scandalous that those state officials refused to perform their duty. That abdication of their responsibility should not have prevented a vigorous defense in court. This outcome sets a disturbing precedent and distorts the balance of powers among the legislative, executive, and judicial branches. It would allow the executive branch to effectively veto duly enacted laws, simply by refusing to defend it against a constitutional challenge.
“Although the government of California, through its inaction, tried to silence the voices of Californians, the court did not create a right to the redefinition of marriage. Marriage laws in the states that tell the truth about marriage — that it is a union of one man and one woman to provide children with a mom and a dad — were not struck down.
We'll post more updates over the next day.