"United States v. Windsor" lawsuit succeeds in having part of
federal DOMA law ruled unconstitutional by the U.S. Supreme Court

2013-JUN-26: Webmaster's reactions to the
ruling on the federal Defense of Marriage Act (Cont).
Congressional action.

Sponsored link.

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

This topic is continued from the previous essay

Webmaster's opinion about the U.S. Supreme Court's DOMA decision: (Bias alert):

I agree with one point that Russell Moore, president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention raised. That is that that by being brought up in an intact family, watching intact opposite-sex marriages on TV, and because of other cultural influences:

"Boys and girls mostly assumed they had a wedding in their futures."

But, in the past, by the time that boys and girls become teens, the approximately 5% of the population who discovered that they have a homosexual orientation had lost this dream and expectation, because same-sex marriage was simply out of reach. As more progress is being made toward marriage equality, boys and girls of all sexual orientations should start assuming that they will marry in their future: those with a heterosexual orientation to a member of the opposite sex, and those with a homosexual orientation to a member of the same sex. Those with a bisexual orientation are the only ones with a choice. Most of them will probably continue to choose opposite-sex marriage partners because of the reduced level of physical, emotional and spiritual aggression against them.

I also agree with Dr. Mohler on a number of points:

• The Prop. 8 case did return the fundamental human right of marriage to the LGBT community in the most populous state in the Union -- California -- and will probably result in tens of thousands of new same-sex marriages annually. However, the DOMA case is far more important to the cause of marriage equality. It laid the groundwork for a single lawsuit in the future which could expand this right to all 50 states similar to what the Lawrence v. Virginia ruling did in 1967 when the court legalized interracial marriages across the entire country.
  
  
• Justice Kennedy quoted from the DOMA statement written by the House of Representatives in 1996. It is of paramount importance to the future of SSM. It said that DOMA expressed:

  "both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality. ...[DOMA would protect the government’s] interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws."

  That statement could also be applied to the marriage laws and constitutions in individual states today that exclude same-sex couples from marrying.

It seems to me that:

• The current state prohibitions of SSM in 37 states marriage laws and/or state constitutions:
  
  
  • Are clearly based on "moral disapproval of homosexuality." But the principle that a state cannot base a law on moral disapproval was asserted in the famous Lawrence v. Texas case that legalized same-gender sexual behavior in private by adults.
    
    
  • Also violate the due process and equal protection principles in the Fifth and Fourteenth Amendments to the U.S. Constitution.
    
    
  • Are also based on conservative/mainline Judeo-Christian religious theology. That violates the separation of church and state requirement found in the First Amendment to the U.S. Constitution.
    
    
• Lawrence v. Texas in 2003 decriminalized same-gender sexual behavior by adults in private. Justice Scalia's minority report in that case may have predicted future trends correctly: He wrote that the majority ruling:

  "... leaves on shaky, pretty shaky grounds, state laws limiting marriage to opposite-sex couples."

  If the principle is established that a state law cannot be based on moral disapproval as it was in Lawrence v. Texas, then laws to prohibit same-sex marriages are unconstitutional. Same-sex marriage would seem to be inevitable across the entire country.

• As noted previously, if the tradition over the last two decades is maintained, then the next Justice to be appointed to the U.S. Supreme Court will be more conservative than the Justice they are replacing. That might preserve marriage inequality for a while longer. But if the next Justice turns out to be more liberal, then marriage equality for all states may well be a shoo in by 2018. This is the target set by the Human Rights Campaign for SSMs in every state. We can expect one horrendous series of battles over any future appointees to the Supreme Court.

We expect one or more lawsuits to be launched by same-sex couple(s) seeking to marry in a state that does not currently allow SSM. If it works its way up to the U.S. Supreme Court and is accepted for review, it would have a good chance of being decided in favor of marriage equality because the arguments incorporated into the 2013 DOMA ruling would also be excellent arguments in favor of permitting SSM. This future Supreme Court ruling may well be so broad that it would cover all of the states in the U.S. and the District of Columbia as in the famous Lawrence v. Virginia case in 1967.

Congressional action:

• Senator Diane Feinstein (D) and Rep. Jerrold Nadler (D) promote the Respect for Marriage Act, a bill that would repeal the entire Defense of Marriage Act. This bill was introduced by Nadler in 2009, but has never been voted upon. It currently has 162 cosponsors in the Senate and 42 in the Senate. Even if all of the Democrats in the House supported the bill, it probably would not be voted upon. The bill appears to be dead.
  
  
• Rep. Tim Huelskamp (R) has re-introduced a Federal Marriage Amendment which would write discrimination into the U.S. Constitution by defining marriage as a voluntary union of one woman and one man. Similar bills during 2004, 2006, and 2008 in the House either did not come up for a vote or failed to receive a two-thirds majority required in constitutional amendments. Even if it had been passed, it would be very unlikely to have been passed in a sufficient number of states to change the Constitution. This time, House Speaker John Boehner and Majority Leader Eric Cantor are not listed as cosponsors. Other leading Republicans have also not backed the bill. The bill appears to be dead or dying.

Impact on same-sex couples and on lawsuits by the repeal of DOMA's Section 3 are covered in the next essay.

Reference used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

1. Ryan Beckwith et al., "Congress is unlikely to act on gay marriage soon," CDN Spundge, 2013-JUL-02, at: http://cdn.spundge.com/

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