Given this blog’s theme, I feel compelled to post something on the Supreme Court’s striking down of the Defense of Marriage Act earlier this week.
From what I’ve read, this decision does less than what a lot of people are assuming, although the language of the majority decision appears to indicate that the Court is ready to go further in the future. For now at least, the Court is saying only that the federal government must recognize as valid any marriage that is also officially recognized by the state where the marriage took place.
My friend and colleague Adam MacLeod has been posting some enlightening information on Facebook recently concerning this decision and the marriage debate in general:
The Court in Windsor struck the Defense of Marriage Act on constitutional grounds—specifically, equal protection—without recognizing a new constitutional right to redefine marriage or ruling that same-sex marriage is required by equal protection. This seems to have confused people. The Court did not create a new right; it announced a new choice-of-law rule for Congress to follow in dealing with rights created by state law.
The key to understanding Justice Kennedy’s opinion in the Windsor case is to read a dependent clause buried on page 21. According to Kennedy, the“dignity” of same-sex relationships is conferred not by immutable principles of justice, nor even by the United States Constitution, but by “the [eleven]States in the exercise of their sovereign power.” (Leave aside the fact that in several of those states, most disgracefully in Massachusetts and California,high courts denied citizens the right to exercise their sovereign power to decide the question what marriage is.) Kennedy’s opinion, and therefore the Court’s ruling, stands on the partly-veiled assumption that marriage is whatever state law says it is, and that marriage rights are whatever states define them to be.
In other words, the Court is saying that individual states have the right to define marriage for themselves. The implication, Adam writes, is that if California (for example) suddenly reversed itself and decided not to license marriages between homosexuals, the federal government would no longer be bound to recognize those marriages.
Naturally, advocates of homosexual marriage are pleased by the decision and see it as a step toward something more, but many defenders of a traditional understanding of marriage also are happy to see DOMA go on federalist (10th-amendment) grounds. I’ll try to return to this debate in the near future if I can get my Great Books reading done.