DOMA down and Prop 8 dismantled

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Nicole Shepard, News Editor  @NicoleEShepard


Last Wednesday the debate over defining marriage took a pivotal turn when the Supreme Court declared two laws defining marriage as unconstitutional.


Much of the argument revolved around Proposition 8, the California law that revoked marriage licenses previously given to same-sex couples, while denying future same-sex couples legal marriages.


The question posed to the Supreme Court was not Proposition 8’s constitutionality, but rather whether or not the group advocating the proposition had the right to appeal in regard to a state’s constitution, a liberty previously held solely by the state.


“[Those] who pushed for the amendment to California’s constitution lost in the lower court’s when Prop 8 was ruled unconstitutional,” David Scott, a UVU professor of constitutional law, said. “The state of California refused to appeal.  Prop 8 supporters then appealed without the state.  The question became whether or not they had standing to appeal, given that they did not represent the state.”


The Supreme Court ultimately ruled that the private citizens did not have the right to appeal without state representation, thus pulling Proposition 8’s foundation from beneath it, making California the thirteenth state to allow same-sex marriage.


“So all this means is that Prop 8 remains unconstitutional with no hope of appeal if the California attorney general refuses to try to appeal it,” Scott said.


The second hot-button topic the Supreme Court addressed was that of the Defense of Marriage Act.


DOMA, signed into law in 1996 by President Bill Clinton, allowed states to refuse to recognize same-sex marriages performed under the laws of other states. The act has been used to deny same-sex couples to claim one another as a spouse on tax and insurance forms, thus denying federal benefits inherently allotted to married heterosexual couples.


DOMA was deemed unconstitutional under consideration of the Fifth Amendment, which says that one right cannot be extended to some but not all, with a 5-4 Supreme Court ruling.


“The problem with the narrow reading of the court in this decision is that it does not, in fact, preclude states that wish to narrow a definition of marriage to opposite sex couples,” Scott said. “The court in effect, acknowledges a state’s unique right to define and protect [marriage] and admits that this is not a federal issue.”


Criticisms of the ruling revolve around its vague nature. While the Supreme Court said the right to define marriage remains with the state, they haven’t fully addressed what the new federal recognition of same-sex marriages actually implies for those states that do not already recognize those marriages.


“Then [the Supreme Court] turns the concept [of the state’s right to define marriage] on its head by arguing that DOMA prevents pro same-sex marriage states from doing just that – conferring benefits on the individuals who might marry but be of the same sex,” Scott said. “So here, the court is opining that DOMA isn’t about supporting state’s rights to determine who can’t marry… but is instead a law that impedes on a state’s right to determine who can marry, because it is denying federal benefits and rights to couples who a state [declare] are married under state law.”


During the justices’ debates there was a notable discord between Justices Antonin Scalia and Anthony Kennedy.


“[The constitution] withdraws from the government the power to degrade or demean,” Kennedy said. “And DOMA writes inequality into the entire United States Code… and its principal purpose is to impose inequality [by placing] same-sex couples in an unstable position of being in a second-tier marriage.”


Kennedy, who is typically considered a right-winged justice, has historically swung left during similar LGBT issue cases, was in direct conflict with Scalia who criticized Kennedy’s majority opinion as “rootless and shifting,” claiming that the Supreme Court had no place interfering in what was already “democratically adopted legislation.”


“[This] is jaw-dropping.” Scalia said. “It is an assertion of judicial supremacy over the people’s representatives in Congress and the Executive. The framers of the Constitution created a judicial branch with limited power in order to ‘guard their right to self-rule against the black-robed supremacy.’”


Regardless of the four justices that were found in dissent, the stamp of unconstitutionality has hit DOMA and its far-reaching effects are unraveling.


“DOMA violates basic due process and equal protection principles applicable to the Federal Government,” the Supreme Court ruling reads. “The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”


Though many in support of same-sex marriage are celebrating the Supreme Court’s decisions, many recognize that the victory may be more symbolic than tangible.


“We’re very excited that the ball is now rolling,” Jake Timmins, a same-sex marriage activist, said. “But we know it’s got to roll a long way still. We’re prepared for any bumps in the road and hope that they just give us momentum.”


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