Thursday, June 27, 2013

If They Only Had a Brain...

...they could while away the hours, conferrin' with the flowers, Consultin' with the rain.  
And their heads they'd be scratchin' while their thoughts were busy hatchin'  

If they only had a brain.

I don't know about you but I've had just about enough of the mindless 'reporting' from the media.  Be it left, right, or center, they've all demonstrated a lack of an ability to think and express coherent thoughts over the past 24 hours.  How many headlines have you seen that says "Supreme Court declares DOMA unconstitutional" or "Supreme Court strikes down ban on gay marriage as unconstitutional"?  Plenty, I'm sure.  As I was driving to the office this morning I heard the mouthpiece on MPB (that's Mississippi Public Broadcasting for those outside the state...not allowed to call it NPR here) say "the Court declared DOMA unconstitutional" and "the Court struck down California's Proposition 8."  Uh, no they didn't.  On either account.  So what exactly DID the Court do yesterday?

Defense of Marriage Act
 The case for this is United States v. Windsor (2013) and involves same-sex couple Edith Windsor and Thea Spyer, who were legally married in Canada but resided in New York.  The state of New York recognized the couple as legally married.  Ms. Spyer died in 2009 and left her estate to Ms. Windsor.  However, because federal law (due to DOMA) did not recognize same sex marriages Ms. Windsor was assessed an inheritance tax on the estate of about $363,000.  Had the federal government recognized their marriage the tax would not have been applicable.  Windsor sued the IRS, setting up the challenge to DOMA.  In 2011, President Obama announced that he would not defend DOMA in court so the House Republicans stepped in to defend the law.  The specific question before the Court was whether the federal government could establish a different definition of marriage than a state for the purpose of federal benefits and federal law.  Section 3 defined marriage as the union of one man and one woman for federal purposes.  

So what did the Court rule?  The majority opinion in the case, authored by Anthony Kennedy, is that section 3 infringed upon the traditional role of states in defining what is and is not marriage.  The federal government has never played a role in defining marriage and that is beyond the scope of the powers granted to it by the constitution.  Defining marriage is a 10th amendment power reserved for the states, or the people.  States are free to define marriage however they want and the federal government must recognize marriages that are legally sanctioned by a state.  Failure to do so creates two classes of citizens, one which has arbitrarily been denied due process of law.  The ruling invalidated section 3 of DOMA.

But the Court did NOT strike down DOMA nor did it declare it unconstitutional.  Section 2 of the law remains in force.  Section 2 exempts states from the Full Faith and Credit clause of Article IV of the constitution.  No state is required to recognize the official acts of another state regarding same sex marriage if that marriage is not legal in the state.  That part of DOMA is still law until such time as it is challenged.  When that happens, I think DOMA will fall because Congress lacks the power to exempt states from the provisions of Article IV without amending the constitution.

Proposition 8

Opponents of prop 8 argued that the law violated the Equal Protection Clause of the 14th amendment.  A District Court in CA agreed and struck down the law.  Proponents of the law then appealed to the 9th Circuit Court of Appeals, which affirmed the District Court ruling in a 2-1 decision.  The proponents then appealed to the US Supreme Court.  In the 5-4 ruling yesterday by Chief Justice John Roberts Jr. the Court ruled that the proponents of the law had suffered no injury or harm as a result of the District Court decision and that the 9th Circuit had unduly accepted their appeal.  Thus, the proponents lacked the standing to sue and so the 9th Circuit ruling must be vacated.  The Court then sent the case back to the 9th Circuit and ordered the Court to dismiss the case. 

What Does That Mean?
The short story is that it means the District Court decision striking down prop 8 stands...for now.  Same sex marriage will be legal in CA as soon as the 9th Circuit complies with the Supreme Court's order.  But...the ruling by the Supreme Court does NOT itself say anything about the validity of state or voter sanctioned bans on same sex marriage.  In other words, the Court dodged the question about whether the 14th amendment requires states to recognize same sex marriages on equal protection grounds.  It allows all the states that have such bans in place to keep those bans.  Nothing changes outside of California, for now.

So, the next time you hear a reporter or talking head say the Court struck down prop 8 just start whistling and singing like the famous scarecrow from Oz...if they only had a brain!

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