predictions re DOMA & Prop 8

what the Supreme Court may do, should do

I am finishing writing this during the interval after the Court heard oral arguements but before they have handed down their decision. Much of it was written before the oral arguements as part of a post to friends interested in this issue.
This was written before I read or was aware of the April 8, 2013 issue of Time magazine , which declares on the cover "Gay Marriage Already Won. The Supreme Court hasn't made up its mind, but America has."
6/27/2013 : the Court ruled yesterday. "A small step for one gay widow, a large step for gay couples throughout the US". But by no means a full resolution of all the issues.

my predictions re the Supreme Court's rulings on DOMA and California's Prop 8

What the Court should do

If I were a Supreme, my Opinion would be very simple. just cite Eisenstad v Baird, which says that surely there is no decision more private and personal than whether or not to bear/beget a child, therefore the right to use contraception cannot be denied, neither to couples nor to single persoons. Surely the decision with whom to share your life is surely of equivalent importance and personal privacy.

It doesn't matter whether being straight or gay or bi (or whether , as I suspect from historical cultural anthropology evidence, most people have an underlying bi-potential which society can influence a lot by approval or repression) is a "choice" or is "set in stone" very early in life (pre-natally ? genetically ? who knows). (Note that most gay people say their personal experience is that they knew pretty early on and that this is not something they can change, nor something they want to change. Straight people don't get asked "when did you know" , "is this something you could change", etc). It's still choice what you do about those natural inclinations : to attempt lifelong celibacy (we know how well that works, don't we ?) or to have affairs or to try to find a partner to share your life with either with or without the formalization of marriage . (Our culture certtainly tends to romanticize marrirage or partnered life as being desirable for everyrone, even though there very clearly are some people who are happier single.) If your choice is to want to live a partnered life, you still have to choose WHO within the range of those who are willing to be chosen, ie would chose you, and being gay or straight does set some limits for you (and I'm not so sure that being bi really means you "double your chances of getting a date", as Woody Allen suggested (and he is such an expert on what makes a good marriage, isn't he ?) , much less double your chances of finding a mate). The "you" in this paragraph is the generic you, ie addressed to anyone rather than to a particular individual.

So if one relies on this line of reasoning, then clearly neither Prop 8 nor DOMA can be upheld. Both violate personal privacy and autonomy because some people are free to choose to marry the one they are partnering and some are not.

Prop 8 also is in conflict with the general provisions of the California Constitution which does contain an explicit right of privacy. The CA Supremes could and should have relied on that to invalidate Prop 8, should have said voters (even a huge majority) cannot take away from one portion of the citizens a general right granted/acknowledged as belonging to all citizens. Or they could have just said Prop 8 is invalid for the same reasons as discussed at great length in "In Re Marriage Cases" decided earlier. Why did they say it's OK for voters to take away a right they had previously declared to be a basic civil right ? Appalling !!! But the California Supreme Court Justices, unlike the US Supreme Court Justices, do NOT have life tenure : they are elected at intervals and can be subject to voter recall. Remember Chief Justice Rose Bird ?(recalled because she had made some anti-death penalty rulings).

To show that voters canNOT vote away basic civil rights, suppose what if Calif voters were to put through a Prop that amended state constitution to say that a "marriage" had to be between people who were of the same race. (For sake of this arguement, please forget the difficulties of defining and distinguishing one "race" from another. just think overtly pure "white" and overtly pure "black", even though that's an illusion.). This would be unconstitutional federally under Loving v Virginia (I am not making up that name !) . It would also be California unconstitutional under an earlier (1948) Calif Supreme Court case Perez v Sharp, decided years before Loving. How is this different from Prop 8 coming after the Calif Supreme Court decided in In Re Marriage Cases that barring same sex couples from marriage was Calif unconstitutional. ? Even without In Re Marriage Cases, the same logic as in Perez and in Loving should be determinative , determinative that it is no less unconstitutional for the state to dictate the sex of one's spouse than to dictate the race of one's spouse.

So the Supremes could and should dispose of both the DOMA and the 8 case by citing Loving v Virginia or citing Eisenstad v Baird or both. To me those cases make strong precedent. I would be happy to give the above analysis as a Bar Exam answer. (But remember that in Roe v Wade, I would have said that any restrictions on abortion other than those strictly medically necessary for a specific type of drug or procedure would be in violation of both the 8th and 13th Ammendments, ie cruel and unusual punishment (one party punished for decades and the other equally guilty not punished at all) and slavery and involuntary servitude.)

What the Court might do (alternatively)

On the other paw, the Court could simply observe that marriage laws have traditionally and constitutionally been the domain of the states.

Therefore DOMA is invalid as it purports to over-ride legitimate state authority. There's that bit in the US Constitution about "those powers not granted to federal government being reserved to the states or to the people thereof". In this line of reasoning DOMA would fall and the federal government be required to give full faith and credit to any marriage (or divorce) , straight or gay, that was legal in the state where it was where contracted just as they already give full faith and credit to the straight marriages and divorces made in any state. And therefore Social Security benefits, federal income tax , and federal estate tax laws would go accordingly (the DOMA suit is by a widow who is challenging the estate taxation on her inheritance from her legally married wife, taxation would have been zero had they been a hetero-married couple, but over $300,000 in this case). Likewise states would have to give full faith and credit to marriages (and divorces) legal in other state where contracted, just as has always been the case for hetero-marriages (and divorces).

In this reasoning Prop 8 might be upheld as being within the domain of the state to make marriage laws, though surely some of the Justices (Ginsburg for sure, Sotomayor and Kagan probably ?) would criticise the underlying bigotry. Or the arguement given above by comparison with the unconstitutionality of anti-micegenation laws, Loving v Virginia, could be cited to rule that the authority of the states to make marriage laws is still subject to US Constitutional limits and that laws dictating the sex or gender of spouses is just as objectionable as laws dictating the race or color of spouses..

But tossing the legalization of gay marriage back to the states would not be such a bad outcome as it would allow states to change at their own pace as their citizens become more enlightened, as seems already to be underway (as the Time Aprl 8, 2013 article describes). And it would allow states to experience the effects of a lot of very talented and highly productive people exiting their state to move to a more enlightened one, tax consequences (loss of taxes generated by the exiting gay people) to the state to follow.

State by state change could be an acceptable situation if most of the states which don't allow "marriage" did allow "civil union" with union property and taxation laws equivalent to marital property and taxation laws. Likewise for laws regarding liability for one another's debts during marriage/union would also have to be equivalent --- and by the way that is a danger that married couples face, that the medical debts of the first one to die will be crippling burden on the surviving spouse --there may well be more first-dead spouses who leave mountain of debt than ones who leave a large estate. (I'm not sure how property owned in Joint Tennacy is affected by taxation or by the debts of first-dead part owner.)

To judge by the last election, I think state by state voter endorsement of gay marriage is going to continue to increase. There may be portions of the country that will remain behind on this. but more and more states will become enlightened. If Prop 8 is not judicially invalidated --- and I am a bit surprised the Supremes granted certorari, but that only takes 4 to grant it --- I think the voters will repeal it, whether in 2014 or 2016. (And if DOMA is not invalidated by the Court, I trust that in 2016 President Rodham will set its repeal into motion. And her candidacy would bring out women voters to vote pro-choice and pro-marriage-equality.)

Because so many gay people are "out", ie openly gay, more and more of the potential voting population has become aware that some of the very nice people they know, people they like and respect, are gay. Many people know several gay individuals and one or more couples, some of whom might be an already close friend or a work collegue or teacher or one's own offspring or even one's own parent. Much of the general population has seen enough of the "fifty shades of gay" to know that these are people much like themselves , people who deserve the same rights and same chance to create a happy life as anyone else has.

(Speaking of voters, don't know why the GOP is so damn stupid about gay marriage -- except for the one or two who got (or will get) the wake up call that "the political is personal" by finding out a beloved child is gay and has a very nice person as partner.. They are finally noticing that there are a lot of Latinos out there and that they vote. That there are too many Latinos to ignore. Well there are also a lot of gay people out there and they vote --- even if it's only Kinsey figures of 5% to 10%, that is enough to swing any election. And last but not least, female humans are the clear majority (53%) starting long before voting age, and women do vote. )

further comments after reports of oral arguements

Some of the questions in Court were back to that old crapola about marriage being for those who can procreate. So all you older folk who had hoped to make it to Silver Anniversary, I hope you don't mind your marriage being terminated now that the wife is past menopause. Hope none of you older men mind that you will be asked to provide a semen sample before being allowed to marry some woman young enough to be your daughter who is still fertile. And so on and so on and so on. However a lesbian couple CAN procreate rather easily . They could "get by with a little help from a friend" plus a paper cup and a turkey baster, or could visit the friendly local sperm bank. And, male couple or lesbian couple, it seems to me that adopting some kid who is already here is just as much "procreation" as is conceiving via "natural cover" (the horseman's term ffor conception through copulation) by one's wedded spouse. Human infants just don't survive to adulthood without at least one adult doing the serious job of parental care. The part of "procreation" that comes after parturition is the long and hard part.

(And oh by the way, if marriage is for procreation, shouldn't we bring back "shotgun weddings" for procreation by the not-yet-married ? Compelling the sire of an accidental procreation to wed the dam and help rear the child seems rare these days, unless you are a self-styled "pit bull with lipstick" --- and my deepest sympathies to all the insulted pit bulls !.)

Margaret Meade some many years back suggested that perhaps we should have two types of marriage. one that is intended purely for companionship and one that is intended for procreation/child-rearing. I actually agree : I thought so then and still think so now, now more than ever. It should be fairly easy to get in and out of a companionship marriage and the couple should have some flexibility in writing the terms of the financial aspect of partnership, provided only that those terms are fair and made after full disclosure and discussion. But once a child becomes part of the marriage, whether "the old fashioned way" or by adoption or however, then the rules need to change to protect the interests of the child, with the wishes and interests of both parents being subordinated to the interests of the child. The government (state and federal) and society have a legitimate interest in demanding that children be well reared. But it's time to recognize that a pair of men can do this, a pair of women can do this, or a mixed couple can do this. Actually any couple will need some help from others as well --- may not take an entire village but does take some help from other adults, at least from time to time.

I just cannot begin to tell you how very much I appreciated Justice Ginsberg's line about "skim milk" marriage. She's my all-time favorite Supreme. I hope she will be writing the majority opinion, unless she assigns it to Kagan or Sotomayor.

I'm betting on Kennedy to come out against DOMA and against Prop 8., based on his opinions in the Colorado Prop 2 case Romer v Evans and in Lawrence v Texas which over-ruled the infamous Bowers v Hardwick (I am not making up that name !) as being "wrong when decided and wrong now".

waiting to see

When the Court rules in May, we will see how good a judicial and legislative prophet I am.

6/27/2013 day after the Court has ruled

Well after a very lengthy "paws for reflection", on the very last day of the session the Court has ruled. (And probably each of the Nine had their get-away cars engines already rev'ved up for a speedy departure.)

The majority opinion on DOMA was written by Justice Kennedy.

On DOMA , the issue presented was the federal inheritance tax benefit , zero inheritance tax on property left by deceased spouse to surviving spouse, that has long been provided for heter-marriages and that DOMA prohibits to gay marriages. The Court's ruling was broader than this one item of federal benefit discrimination. The Court ruled that for all of part 3 of DOMA, the part that defines "marriage" as between "spouses" who are of opposite sexes, is unconstitutional on grounds o 5th adn 14th Ammendments. Thus the ruling expxlicitly said that all federal benefits given to "marriage" must apply equally to gay marriages that were legal in the state where performed.. Impliedly likewise all duties of marriage, eg duty of each spouse to support the other financially and liability for marital debts, would also apply equally as regards federal laws.

The Court also said that marriage law is up to the states, though subject to limits imposed by the Constitution, and cited Loving v Virginia as an example of a Constitutional limit. That citation to me seems to imply that the Court leaves open the question of whether a state may or may not require that spouses be of opposite sexes. I have little doubt that cases involving this issue are already underway in several states and will eventually reach the Court.

The Court did NOT consider the issue of whether states that do not endorse gay marriage must give full faith and credit to a gay marriage legally contracted in a differrent state. That issue was not raised by the facts or issues of this case. I have little doubt that soon enough cases that do raise this issue will arise and eventually one or more will trudge the long and arduous path up to the Supreme Court.

It's also not clear where this leaves those gay couples who are currently in a legal "Civil Union" or "Domestic Partnership". Are these relationships still "skim milk" as regards federal beneits (and duties) or are they to be accorded the same treatment as "marriage" ? This seems to be an unanswered question. Those whose situation could be powerfully affected by any of the federal rules, such as wealthy couple (concerned with federal income tax and inheritance tax), might be well advised to "upgrade" to "whole milk" by obtaining legal marriage in their own state if their state currently allows that or by getting married in a more enlightened state.. They don't have to move to the enlightened state permanently, though they should consider doing so (especially in view of state income taxes and state inheritance taxes), as the federal rules will apply in all states.

On California's Proposition 8 , the Court was able to dodge the issues. (It's not unlikely that they regretted having granted certorari in the first place.). The Court was able to use the withdrawal of the State of California from the defense of Prop 8 as a way to rule that there was no party on that side with standing to argue that side of the case. This throws the ruling back to the Federal Appellate Court which had earlier ruled that Prop 8 was indeed unconstitutional.

Thus the outcome of the Prop 8 case is that Prop 8 has been effectively neutralized, leaving gay marriage legal in California. One wonders whether the Supremes would have used lack of standing to dodge this bullet if the Appllate Court had ruled Prop 8 to be constitutional. I suspect not. I suspect that by ruling on standing , the Supremes have done a marvelous tap dance of "having their cake and eating it too" -- in this case the cake is a wedding cake.

Will those who instigated Prop 8 make another attempt at yet another Initiative measure to ban gay marriage, one that they think might pass Constitutional tests at state and federal levels , or might at least throw the matter back into chaos ? They may do so, but public opinion has so far changed in California (and many other states) since 2008 that it seems unlikely that such an attempt would pass and indeed a resounding defeat would probably occur. Perhaps the bigots should give up and move to Utah (or maybe not Utah where the idea that marriage is one man and only one woman does not have universal approval) or perhaps Texas or perhaps out of the US altogether.

Nothing in either decision would require any church or clergyperson to perform a gay marrirage if she or he did not want to do so or if that church forbade such marriages. Please notice that the Catholic Church and its priests are not forced to perform marrirages in which either partner is divorced or is not a Catholic or otherwise violates Catholic rules. Religions are still allowed to make their own rules as to religious marriages, and the 1st Ammendment would continue to assure this. But a religious ceremony has no legal standing by itself. For a "marriage" to have legal standing, it must be performed civilly in accordance with civil law and pursuant to a civil marriage license. It is legal marriage that creates state and federal legal rights and duties. The idea that marriage equality will force religous entities to perform marriages they abhor is simply a red herring or just plain stupidity on the part of those propounding that idea.

The issue of "procreation" as related to "marrirage" seems to have gone unmentioned in the opinions. Quite rightly so, as it would be impossible to consider procreation as relevant to the right to marry for gay couples without also considering it as relevant to hetero-couples. And that is a can of worms that no one really wants to open. Least of all the Nine Old Persons, all of whom are past age of reproductive capability or wedded to women who are past such age.

I have not yet had chance to really study and analyze either opinion, only a quick read. I downloaded PDF files of each one but now find I cannot open them on my laptop.

Update 2015

The Supreme Court ruled in June 2015 in OBERGEFELL ET AL v HODGES that the 14th Amendment requires that same-sex marriage must be allowed in all states and that all states must give full faith and credit to marriages legally contracted in other states.

The Court's reasoning was similar to that I have given in this article, but they said so at much much greater length.


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created 3/26/2013 revised 5/01/2013 and 6/27/2013, 9/07/2015
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