WASHINGTON — In a 5-4 decision on June 26, the U.S. Supreme Court struck down part of the federal Defense of Marriage Act (DOMA), ruling that it denied legally married same-sex couples equal protection under the law.
In a separate 5-4 decision on the Proposition 8 case, Hollingsworth v. Perry, the high court found that the citizens’ group that appealed a lower-court ruling striking down the 2008 California voter initiative that defined marriage as between one man and one woman did not have standing to bring the case to the Ninth Circuit. The justices directed that the case be remanded to the San Francisco district court that ruled Proposition 8 unconstitutional.
The rulings were not a surprise to constitutional experts who had followed the justices’ questions and comments during the March 2013 oral arguments for the two landmark marriage cases.
But the news prompted dismay from Catholic leaders and other advocates for traditional marriage.
“Today is a tragic day for marriage and our nation. The Supreme Court has dealt a profound injustice to the American people by striking down in part the federal Defense of Marriage Act. The court got it wrong. The federal government ought to respect the truth that marriage is the union of one man and one woman, even where states fail to do so," read a statement from the U.S. Conference of Catholic Bishops.
Experts on both sides noted that, while additional litigation was expected, the DOMA decision did not strike down as unconstitutional state bans on same-sex “marriage.”
Meanwhile, the Proposition 8 ruling appears to leave in place the initial district-court decision, which found the state voter initiative unconstitutional.
Same-sex couples in California will likely be able to marry soon, but the decision does not affect other state marriage laws.
“A narrow majority of the justices voted to strike down Section 3 of the federal Defense of Marriage Act,” Richard Garnett, a law professor and associate dean of the University of Notre Dame Law School, told the Register.
“Similarly, a different narrow majority’s conclusion that the supporters of California’s Proposition 8 lack standing to appeal the trial court’s decision was widely expected.”
Yet Garnett said the two rulings would have no immediate impact on state laws that ban same-sex “marriage.”
“At least for now, the political process and public deliberation on the marriage question will continue,” he said, while noting that the DOMA decision will “encourage additional challenges to most states’ definitions of ‘marriage,’ and at least one of those challenges will return to the Supreme Court in the near future.”
Writing for the majority on the DOMA decision, Justice Anthony Kennedy said the federal law “violates basic due process and equal-protection principles applicable to the federal government. The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”
“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’ hateful moral judgment against it,” wrote Justice Antonin Scalia in a scathing dissent from the majority opinion.
“I promise you this: The only thing that will ‘confine’ the court’s holding is its sense of what it can get away with.”
In the wake of the two marriage rulings, Archbishop William Lori of Baltimore expressed dismay that the high court had not resisted an increasingly powerful legal and cultural current to redefine a central social institution.
The two rulings, said Archbishop Lori, “are the latest in a troubling trend of decisions by lawmakers, judges and some voters which ignores the fundamental truth about marriage: It is the most valued, most important social unit in our society and, as such, is deserving of the protection and special recognition societies have afforded it throughout human history."
“Today’s decisions will undoubtedly have far-reaching consequences, most especially for children, and are another serious blow to the institution of marriage,” said Archbishop Lori in a June 26 statement.
The U.S. bishops have repeatedly warned that any change in the nation’s marriage laws would not only weaken respect for marriage, but also threaten the free exercise of Catholic institutions that uphold Church teaching on marriage as a union of one man and one woman.
Archbishop Timothy Broglio of the Archdiocese for the Military Services, raised these concerns in a June 26 op-ed in The Washington Post that affirmed the equal dignity of all persons, but rejected the notion that marriage could be redefined. “Marriage remains what it has always been, regardless of what any government might say,” stated Archbishop Broglio, who acknowledged the disorienting effect of military personnel dealing with a patchwork of state marriage laws. “It is unseemly that the uniformity of the federal system can now be upset by state policies in this area of life and law.”
While Archbishop Broglio has repeatedly expressed concern that a redefinition of marriage would threaten the religious liberty of military chaplains, he insisted that the “Constitution guarantees that no endorsed minister will ever be compelled to perform a religious ceremony contrary to the dictates of his/her faith, nor will today’s decision have any effect on the role and teaching ability of a priest or deacon in the pulpit, the classroom, the barracks or in the office.”
Douglas Laycock, a top constitutional scholar at the University of Virginia's law school, noted that the DOMA ruling did not address religious-freedom concerns, but he acknowledged that military chaplains could confront mounting pressure to accommodate same-sex couples.
“The question is to what extent the chaplains retain their free-exercise rights or act as military officers,” Laycock told the Register.
When the Supreme Court took up the DOMA case, United States v. Windsor, it was asked to address several issues, most prominently, “whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state.”
The court also addressed two other related issues: whether the Obama administration’s decision not to defend the federal law deprived “this court of jurisdiction to decide this case” and “whether the Bipartisan Legal Advisory Group of the U.S. House of Representatives,” which took up the defense of DOMA in the courts, had “standing in this case.”
The high court determined that Congress did have standing to defend DOMA. However, when the issue of standing arose in the Proposition 8 case, the court found that the private citizens group that took up the defense of the state voter initiative after state officials refused to do so did not have standing.
Thus, the justices’ ruling in the California case set aside the more central question of whether “the Equal Protection Clause of the 14th Amendment prohibits the state of California from defining marriage as the union of a man and a woman.”
Prop. 8 Implications
Douglas Laycock outlined the implications of the Proposition 8 ruling for California and future litigation on the issue.
“The Supreme Court told the court of appeals to dismiss the appeal. That appears to leave the district-court judgment in effect,” said Laycock.
“That judgment is not binding on other courts or judges. But it is binding on the parties to the case, and it ordered state officials to stop enforcing Proposition 8 anywhere in California.”
Laycock noted that state officials “have no desire to challenge that. Individual county clerks could challenge it, and there could be further litigation about whether the district court could bind all the county clerks who were not parties to the litigation. But in much of California, county clerks may be happy to go along.”
Both Supreme Court rulings were claimed as a victory for advocates of “marriage equality,” but Notre Dame’s Garnett pointed out that the decisions presented “two different visions of the constitutional task of unelected federal judges.”
“In the case concerning California’s Proposition 8,” said Garnett, “the chief justice reminded readers that the court’s job is not to seek out and answer interesting questions or to put to rest ongoing political debates.”
In contrast, the DOMA majority opinion “took the occasion to rule on the law’s constitutionality and to strike it down.”
Justice Scalia's dissenting opinion on DOMA underscored the justices' opposing views about the role of the court.
"We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation," Scalia stated. "The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.”
That said, the absence of any broader moral context for anchoring the nation’s marriage laws was also striking, even if expected.
In March, after the justices heard the oral arguments on the marriage cases, Gerard Bradley of the University of Notre Dame Law School said the exchanges “reveal a court which is indeed standing over a ‘cliff’ looking into ‘uncharted waters.’”
During the March oral arguments, the justices raised questions about the findings of social research on the impact of same-sex “marriage” on family stability and children, but Bradley concluded that the “missing ingredient is not ... a body of social-science data. It is a strategically central moral judgment which the court is obviously not going to undertake.”
Now, in the wake of the June 26 decision on DOMA, some will contend that Justice Kennedy did stake out the moral high ground when he wrote a majority opinion that chastised Congress for passing a law that expressed "animus" toward a particular social group. Going forward, his judgment will lead some citizens to embrace a new framework for marital relationships and family formation.
But other Americans will resist the siren song of “marriage equality."
“Citizens in all 50 states remain free to discuss and debate laws on marriage,” Ryan Anderson, co-author of What Is Marriage? Man and Woman: a Defense, told the Register. “They should continue to do this, and they should continue to tell the truth that marriage matters for children, society and limited government.”
Joan Frawley Desmond is the Register’s senior editor.