A Rainbow Lining, But We Still Have Miles To Go

No, today’s rulings by the Supreme Court on the Defense of Marriage Act and Prop 8 do NOT make up for yesterday’s horrendous decision to walk back five decades of voting rights. Nothing can make up for that blight on judicial justice. The fact that it took the state of Texas a whole two hours to announce its new voter ID law proves just how devastating that ruling will be.

But let’s put aside the Voting Rights decision for now and concentrate on today’s good news. If yesterday’s ruling came as no surprise to anyone who was paying attention, today’s rulings were baffling to say the least. And while they were both important, it’s DOMA I want to focus on here.

By a 5-4 count, the Court decided to overturn the controversial law.  But before gay-rights groups start celebrating too loudly, a closer look at the decision is in order.

To sum up, the Court did NOT hold that homosexual couples had a constitutional right to marry.  As Adam Winkler noted in The Daily Beast, had it done so, “bans on same-sex marriage in 38 states might have been overturned.” Instead the Court, or more to the point Justice Kennedy who wrote the majority opinion, relied on procedural defects in the law as justification for tossing it.  Chief among them were violations to the Fifth Amendment, due process and equal protection. Kennedy also wrote that the law denied same-sex couples the “government healthcare benefits they would otherwise receive.”

And when he wasn’t explaining the law’s defects, Kennedy went out of his way to remind everyone what his real thoughts are regarding marriage. For instance, he rejected the Administration’s claim that “all laws discriminating against LGBT individuals should be subject to heightened judicial review.” He elaborated further, 

The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the protection of offspring, property interests, and the enforcement of marital responsibilities. The states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce and the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.

If that sounds like states rights to you, you ain’t just whistlin’ Dixie. This wasn’t an endorsement of gay marriage; it was a repudiation of the federal government sticking its nose where it doesn’t belong.

I get it that the LGBT community might not care how Kennedy and the majority arrived at their decision – as baseball fans are fond of saying, they all look like line drives in the box score. The inherent problem, though, with this ruling is that it doesn’t resolve the issue at hand. Lower courts may still uphold gay-marriage bans. Indeed a same-sex couple, married in a state that recognizes their marriage, may find that marriage invalid in another state. In fact, the ruling has no affect on state laws whatsoever.  How’s that for ironic?

I thought last year’s healthcare ruling took the cake for most creative way to cross a finish line. This one just beat it out, if only by a hair.

After yesterday’s debacle, no one should look this gift horse in the mouth. So long as everyone knows that the horse is on a loan.

Author: Peter Fegan

Progressive but pragmatic. Lover of music, die-hard Giants' fan and reluctant Mets' fan. My favorite motto? I'd rather be ruled by a smart Turk than a dumb Christian.

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