"United States v. Windsor" lawsuit attempts to have federal
DOMA ruled unconstitutional in the U.S. Supreme Court
Reactions by DOMA commentators.
Predicted scenarios for the Supreme Court ruling.
The acronym "SSM" refers to "same-sex marriage."
The acronym "DOMA" refers to the Defense of Marriage Act
"SCOTUS" refers to the Supreme Court of the United States
Reactions by commentators after the hearing:
- The Family Research Council (FRC) is a fundamentalist Christian non-profit organization listed as an active anti-LGBT hate group by the Southern Poverty Law Center because of the perceived lack of accuracy of their information on LGBT topics. They filed an Amicus Curiae, a legal brief, with the Supreme Court. It concludes:
"FRC actively supported the Defense of Marriage Act, the constitutionality of which is the subject of this litigation. FRC, therefore, has a particular interest in the outcome of this case. Requiring the United States to extend the federal benefits of marriage to couples who have entered into same-sex marriages would not promote any of the interests on the basis of which opposite-sex marriage is a protected social institution. And, for the reasons set forth herein, nothing in the Constitution, properly understood, compels that result. Accordingly, the judgment of the Court of Appeals for the Second Circuit should be reversed." 1
- Chris Gacek, a Senior Fellow at the FRC wrote an article in U.S. News and World Report for 2013-MAR-28. He wrote, in part:
"DOMA does not affect state laws that govern marriage in any way. DOMA only applies to federal issues, and it is perfectly legitimate, as a matter of federalism, for the United States government to define terms like "marriage" and "spouse" that are used in federal statutes and regulations.
Clearly, one can disagree with DOMA's definition of marriage, and the American people are free to repeal DOMA and endorse same-sex unions. But it would be a different thing altogether for the Supreme Court to redefine marriage.
Recent elections in more liberal states have made it clear that same-sex marriage supporters are fully capable of advancing their social agenda without the courts intervening to shut down debate. These states have the right to redefine marriage, and same-sex marriage proponents have the right to change the federal marriage definition. However, they should not be permitted to force their definitional change onto the entire nation using the courts. As such, DOMA's constitutionality should be upheld." 2
- Ken Klukowski is the director of the Center for Religious Liberty at FRC. He wrote an article for CNN on 2013-MAR-28, saying in part that if the Court of Appeals ruling is upheld, that:
"This week the Supreme Court heard two historic cases on marriage. Even though I was a lawyer in the litigation and in the courthouse both days, I can't predict which way the court will come down. But the outcomes range from nothing at all to fundamentally restructuring the foundational unit of western civilization. ..."
"Windsor would alter America's system of federalism. Only the states determine who can get married. But the federal government is free to decide whom to confer federal benefits on - largely economic entitlements and federal issues such as immigration. Federalism is a two-way street. But if DOMA Section 3 is invalidated, the states will be able to dictate whom the recipients of federal benefits are. ..."
"Justice Anthony Kennedy is likely the swing vote..."
"As Justice Samuel Alito said this week, the Internet and cell phones have been around on this planet longer than gay marriage. It is an energetic debate in all 50 states, and this summer we will learn whether the Supreme Court will shut down this debate by making it a constitutional issue on which the American people are not allowed to vote." 3
His final paragraph raises the question of whether a majority of voters should have the power to deprive a defined group of the right to marry. During 1967, in Loving v. Virginia, the U.S. Supreme Court prohibited state legislators from depriving interracial couples of the right to marry. There has been little discussion on whether other minorities, like the LGBT community, should be victims of the "tyranny of the majority" by having the right to marry the person that they love and to whom they are committed taken away by a referendum vote of 50% plus one of the voters.
- Pete Williams, a NBC News correspondent, reported that there appeared to be five Justices opposed to the constitutionality of DOMA. If true, then DOMA will be made toast by a 5 to 4 vote.
- A commentator "SCOTUSblog" who carefully monitors Supreme Court activities tweeted:
"#scotus 80% likely to strike down #doma. J Kennedy suggests it violates state's' rights; 4 other Justices see as gay rights." 4
2013-MAR-28: Rush Limbough says that conservatives have lost the same-sex marriage debate:
"This issue is lost. I don't care what the Supreme Court does, this is now inevitable -- and it's inevitable because we lost the language on this. ... [Conservatives] lost the issue when we started allowing the word ‘marriage’ to be bastardized and redefined by simply adding words to it. ... Marriage is one thing, and it was not established on the basis of discrimination. It wasn't established on the basis of denying people anything. 'Marriage' is not a tradition that a bunch of people concocted to be mean to other people with. But we allowed the left to have people believe that it was structured that way." 5
My knowledge of U.S. Constitutional law can be neatly inscribed on the head of a pin. But it seems to me that the executive branch of the government is required to enforce all laws passed by Congress and signed by a President. This includes laws that it likes, those it finds intolerable, and those it finds unconstitutional. It cannot pick and choose which laws it will enforce. To do so would create chaos and would seem to be a gross dereliction of duty.
We were pleased to see Justice Kennedy express his opinion that the power to define marriage -- that is the authority to create laws defining who can marry and who cannot -- "was always thought to be" with the individual states and not with the federal government.
2013-APR-08: OK: Oklahoma House passes resolution affirming DOMA, and the exclusion of same-sex couples from marriage:
Tony Perkins described an unusual event in Oklahoma. He heads the Family Research Council, which has been cited as an active anti-gay hate organization by the Southern Poverty Law Center. His Washington Update stated that the Oklahoma House passed a resolution affirming that marriage is to be restricted to one man and one woman, and supporting the federal Defense of Marriage Act. He wrote:
"The final vote? Eighty-four to zero. Not a single member voted against natural marriage--a stunning show of solidarity on an issue that most reporters insist is already lost."
Unfortunately, Perkins did not tell the whole story. and thus many of his readers will come away with a distorted impression of what actually happened in Oklahoma. In fact most of the Democrats in the Oklahoma House voted against the resolution -- with their feet -- by walking out of the chamber in advance of the vote. 7,8
2013-APR-08: A graphic on the DOMA and Prop. 8 cases:
The Human Rights Campaign -- a pro-LGBT advocacy group, has prepared the following graphic outlining what they consider to be the four most likely outcomes of the current two court cases:
"Perry" involves the constitutionality of the Proposition 8 citizen initiative that terminated, at least temporarily, SSM for California in 2008-NOV.
"DOMA" involved the case discussed in this section of our web site: determination of the constitutionality of the federal Defense of Marriage Act which prohibits the federal government from granting the same benefits and protections to loving, committed same-sex couple that they already provide for opposite-sex couples:
Not included are the possibilities of:
- Scenario 5: The court striking down the Prop. 8 and Windsor case.
- Scenario 6: The court deciding that they do not have jurisdiction, and dropping one or both cases. Dropping the "Perry" ruling by the 9th U.S. Court of Appeals would restore access to same-sex marriage in California, but would have no implications for other states. Dropping the "Windsor" ruling by the 2nd U.S. Court of Appeals would overturn DOMA in New York State, but might have no implications for other states.
These scenarios are considered unlikely.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "Brief Amicus Curiae of the Family Research Council in Support of Respondent Bipartisan Legal Advisory Group Addressing the Merits and Supporting Reversal," Family Research Council, undated, at: http://www.frc.org/
- Chris Gacek, "Perspective," U.S. News and World Report, 2013-MAR-28, at: http://www.frc.org/
- Ken Klukowski, "Perspective," CNN, 2013-MAR-28, at: http://www.frc.org/
- "Supreme Court likely to strike down gay marriage ban DOMA," Chicago Pride, 2013-MAR-28, at: http://chicago.gopride.com/
- "Rush Limbaugh concedes conservatives 'lost' marriage debate, CNN, 2013-MAR-28, at: http://politicalticker.blogs.cnn.com/
- Brian Moulton, "So, the Supreme Court heard oral arguments – what's next?," Human Rights Campaign, 2013-APR-08 email, at: http://action.hrc.org/
- Tony Perkins, "Washington Update," 2013-APR-09, at: http://www.frc.org/
- "Oklahoma House passes gay marriage resolution 84-0, backing federal Defense of Marriage act," KJRH, 2013-APR-08, at: http://www.kjrh.com