DOMA and Prop. 8: 2 Defeats for Marriage This Week

It’s looking more likely that the U.S. Supreme Court will soon be asked to decide the same-sex ‘marriage’ issue.

Two recent legal court rulings may increase the likelihood that the issue of same-sex “marriage” will ultimately be decided by the U.S. Supreme Court.

On June 5, the Alliance Defense Fund, a coalition of Christian attorneys, asked the Supreme Court to review the U.S. Court of Appeals for the Ninth Circuit’s decision to not reconsider a February ruling by a federal three-judge panel that struck down Proposition 8.

In 2008, 52% of Californians voted to approve Proposition 8, a constitutional amendment that legally defined marriage as the union of one man and one woman. In 2010, a U.S. District Court judge in San Francisco said the law was unconstitutional, a ruling that was later backed by the three-judge panel of the Ninth Circuit. The parties have 90 days to ask the Supreme Court to intervene.

The circuit’s refusal to review Proposition 8 occurred just days after a May 31 ruling by the U.S. Court of Appeals for the First Circuit in Massachusetts, which said the 1996 Defense of Marriage Act is unconstitutional because the law discriminates against same-sex couples by not granting them access to federal benefits.

Meanwhile, during the World Meeting of Families in Milan, which was held June 1-3, Pope Benedict XVI called on legislators to ensure that “the legislation and activities of state institutions” are always at the service of individuals. This begins, he said, with the right to life, but should also include upholding the “specific identity of the family founded on marriage between a man and a woman.”

In the U.S., the DOMA case "could get up to the Supreme Court,” said Doug NeJaime, an associate law professor at Loyola Law School in Los Angeles. "In fact, the First Circuit, in its opinion, was basically asking the Supreme Court to answer the question."

President Barack Obama, in February 2011, instructed the Department of Justice to not defend legal challenges to Section 3 of DOMA when applied to "legally married same-sex couples." Section 3 defines marriage for federal purposes as between a man and a woman.

NeJaime said he believes both the Proposition 8 and DOMA cases are limited in scope and that neither case would force a national blanket sanctioning of same-sex “marriage” in the manner that Roe v. Wade made legalized abortion the law of the land in 1973.

The central issue in the DOMA case is whether the federal government can legally withhold benefits from same-sex couples who are legally “married” in some states. The First Circuit Court did not address Section 2 of DOMA, a provision that says no state or territory is obligated to legally recognize a same-sex “marriage” performed in another jurisdiction.

“It wouldn’t lead to any new same-sex ‘marriages,’” said NeJaime, who suggested that DOMA’s Section 2 is “superfluous.”

“States have already been dealing with this question,” NeJaime said.

While the Proposition 8 case was originally trumpeted by supporters of same-sex “marriage” as a national referendum on the issue, the federal courts have since narrowed the case to specific arguments over California state law.

The Ninth Circuit’s three-judge panel voted 2-1 to strike down Proposition 8 as unconstitutional because it violated the U.S. Constitution’s Equal Protection and Due Process Clauses. However, the judges said they were only speaking about the California law and that other states would have to decide the same-sex “marriage” issue for themselves.

“The likely implications from both cases are actually quite limited,” said NeJaime, who added that it remains to be seen whether the Supreme Court will decide to take up the question of same-sex “marriage.”

“This is definitely a big issue with national significance,” NeJaime said.


A ‘Universal Good’

People on both sides of the issue say two cases are milestones on the path to deciding whether same-sex “marriage” will be nationally recognized.

Joe Solmonese, president of the Human Rights Campaign, a nonprofit that advocates for homosexual rights, said in a prepared statement that the Ninth Circuit’s refusal to take up the Proposition 8 case “is another significant step on a path that we all know leads to equality.”

“With [the Prop. 8] announcement, we are one step closer to ensuring that gay and lesbian Californians — and, one day, our entire community nationwide — are able to join the institution of marriage and have their love and commitment respected equally,” Solmonese said.

Brian Brown, president of the National Organization for Marriage, which advocates for natural/traditional marriage, said the appeals courts have made it highly likely that the Supreme Court will have to step in and determine whether there is a rational basis for defining marriage as the union of one man and one woman.

“It is clear that the U.S. Supreme Court is going to have to resolve this issue once and for all,” Brown concluded.

The Alliance Defense Fund, which is part of the legal team for, the umbrella organization defending Proposition 8, said its case is about proving that marriage is a universal good that has been honored by diverse cultures and faiths in Western civilization.

“The legal team looks forward to standing before the U.S. Supreme Court on behalf of the people’s right to preserve the fundamental building block of civilization, especially since the dissent accompanying [Tuesday’s] decision strongly supports our arguments,” said ADF senior counsel Brian Raum.

Ninth Circuit Judge Diarmuid O’Scannlain wrote a blistering appeal in which he said the appeals court had declared that “animus must have been the only conceivable motivation for a sovereign state to have remained committed to a definition of marriage that has existed for millennia.”

“We should not have so roundly trumped California’s democratic process without at least discussing the unparalleled decision as en banc court,” O’Scannlain wrote.

Attorney Charles Cooper, a lead counsel with the Cooper & Kirk law firm in Washington, D.C., is a member of the legal team defending Proposition 8. He said the Supreme Court has “made it perfectly clear that marriage is constitutional as a matter of state public policy.”

“The lower court opinions were little more than an attack on the character and judgment of millions of Californians, and those decisions essentially ignored all relevant Supreme Court and appellate court precedents,” Cooper said. “We are hopeful and confident that the Supreme Court will review the Ninth Circuit’s decision.”

Register correspondent Brian Fraga writes from El Paso, Texas.