thoughts on SCOTUS’ rulings on DOMA and Prop 8

The big one is, today we celebrate but tomorrow it’s back to work – some same-sex couples in the US still don’t have Federal marriage rights, because their marriage isn’t recognized in the state where they live. (There’s a decent explanation of the details here, but don’t read the comments!)

I dislike Scalia, but at least I’ll give him props for consistency; he dissented on the overthrow of DOMA because he said the Supreme Court had no right to rule in that case – so then he joined the majority opinion on refusing to hear the case on Prop 8 for similar reasons. I don’t think he’s right, though – he said “there is no controversy because the government (Obama’s lawyers) and the plaintiff both agree on what should happen.” But there is controversy, because Congress passed a law not allowing it to happen; so the controversy there is between the executive and legislative branches of government, and isn’t that exactly what the judicial branch is there to settle?

The Prop 8 case is a ridiculously complex thing anyway – I can’t say that SCOTUS “struck down” Prop 8, and refusing to hear a case on it sounds like the proposition would stand – but what they did was to refuse to overrule a Federal judge’s ruling that struck down the proposition. It’s a case where I can see why they’d tread gingerly; they ought to be very careful about having judicial rulings get in the way of a law voted by the people. But “very careful” doesn’t mean “don’t do it”, on two counts: one, the people can pass laws that are unConstitutional, and the courts have a right to strike those down (segregation laws spring immediately to mind) and two, in this case there’s evidence that lobbying from forces outside the state were extreme. Now that California is no longer a groundbreaker, I wonder if such a law could pass today even with all that money thrown in.

FInally, I saw an interesting point on DOMA: that at the time it was passed, DOMA was considered to be a compromise, to “take the air out” of a proposal for a Constitutional amendment banning same-sex marriage.

If so, it was an enormous gamble. I don’t know whether such an amendment could have passed back in 1996; if not, they delayed equality under the law by 17 years. People died in those years. People grew up in those years, knowing themselves to be considered second-class citizens under Federal law. If that estimation was right, then it was a brilliant delaying tactic, because I am pretty sure that such an amendment could not be passed today, so this was the right moment to kill DOMA. If an amendment had been passed in the late ’90s, it would take us much longer to repeal it, delaying this moment possibly by decades – or more. No state would be allowing same-sex marriage today, so it’s possible opinions wouldn’t have changed as they have when people saw for themselves that same-sex couples could love and marry without the sky falling.

I think I’m actually glad that I don’t know the truth in this case.

The soundtracks in my head today are from Arlo Guthrie and Phil Ochs.

(OK, today’s decisions don’t affect “all over the world”, but country after country has been legalizing marriage regardless of gender.)

(Couldn’t find a video of Ochs himself singing it, but this one is nice.)

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