Marriage Equality’s Big Day: Blog Reax

U.S. Supreme Court Issues Orders On DOMA And Prop 8 Cases

Ilya Somin unpacks the DOMA decision:

[W]hat [Kennedy] seems to be saying is that the the Congress’ pursuit of purposes beyond the normal scope of federal authority in DOMA makes the law a “discrimination… of an unusual character” and justifies imposing tougher scrutiny under the Fifth Amendment. … The idea that federal statutes are suspect if they seek to achieve purposes outside the scope of federal power is not a new one. In McCulloch v. Maryland (1819), Chief Justice John Marshall famously wrote that Congress may not “under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government.” The rule that “unusual” laws get tighter scrutiny in equal protection cases is also not new. But the DOMA decision is the first to tie these principles together.

From Jack Balkin’s legal analysis:

Windsor is a reminder of the fact that the scrutiny rules we teach our students as gospel are a relatively recent invention–less than fifty years old.   They were designed to make it easier to think about when laws are constitutionally unequal. But sometimes they don’t really assist our understanding of the issues; they just get in the way.  In fact, you actually can explain Windsor in terms of the existing structure– it’s a “rational basis with a bite” case, and that’s how the casebooks (including the one I co-author) will probably classify it. But we should be able to look behind the doctrinal superstructure, which explains little, and see the deeper principles at stake, principles that have a long history in American constitutional thought.  DOMA singled out gay people for special burdens in an important area of social life; it declared their marriages less valuable, and therefore, to that extent, it made them second class citizens.  Even if this wasn’t obvious in 1996, it is increasingly obvious today.

Jonathan Cohn focuses on plaintiff Kris Perry’s reaction:

Perry’s comments focused on the children—in the U.S., and in California, and in her very own home: “We believed from the very beginning that the importance of this case was to send a message to the children of this country that you are just as good as everybody else, no matter who you love, no matter who your parents love,” Perry said. “And today we can go back to California, and say to our own children, all four of our boys, your family is just as good as everybody’s else’s family, we love you as much as anybody else’s parents love their kids, and we are going to be equal.”

Weigel looks ahead:

So what happens politically? Republicans haven’t rushed to the microphones yet, but the House GOP lost—they paid to defend DOMA, and it was struck down. It’s within their power to try to defund the removal, and we’ll suss out soon whether there are enough House Republicans passionate about the issue to do this.

But the court’s decision not to write a new definition of marriage (to just overturn Prop 8) means that marriage rights return to the states, to be voted on in referenda, state legislatures, and in courtrooms. The polling in favor of gay marriage has stalled somewhat, after tipping into positive territory nationally. But we’re going to see a series of campaigns and scattered lawsuits from couples who now can say they deserve marriage benefits and there’s no act of Congress stopping them.

Enten expects the DOMA ruling to “be welcomed by most Americans”:

In poll after poll taken over the past few months, at least 60% of Americans have agreed that the federal government should recognize same-sex marriages in those states that allow it. This is significantly higher than the roughly 53% of Americans who believe same-sex marriage should be legalized everywhere.

Jonathan Tobin gives American culture credit for today’s decision:

How did this sea change come about? Liberals may consider it a natural evolution of thought to more progressive opinion (since as we saw with President Obama and gay marriage, reversals on such issues that end with an endorsement of the more liberal position are regarded as evolution rather than a flip-flop). But it could never have happened outside of the context of American popular culture that has normalized gays and gay marriage in films and TV to the point that they are now regarded as unexceptionable. As my colleague John Podhoretz noted on Twitter this morning after the ruling, the credit for the decision on DOMA belongs as much to the producers of the Will and Grace television show as it does to any legal scholar.

Dreher plays the victim:

Scalia has chillingly illuminated the future for marriage traditionalists: the only reason to oppose same-sex marriage is hate. In constitutional law, there is no rational basis for supporting traditional marriage. Henceforth, the Court has declared open season on religious and social conservatives and their institutions. Given the majority’s holding that hatred is the only plausible explanation for denying same-sex marriage, I see no reason why the Supreme Court will not declare same-sex marriage a constitutional right.

And the logic of the Court’s language here ought to put fear into the hearts of anyone who does not share the belief that homosexuality is morally neutral, or morally good. The Supreme Court says we are haters, full stop.

Waldman, on the other hand, tackles Scalia:

[T]his is a guy who, in a decision delivered just yesterday, helped gut the Voting Rights Act, one of the most important pieces of legislation ever passed by Congress and one that was reauthorized in 2006 by votes of 390-33 in the House and 98-0 in the Senate, yet spends two-thirds of this very dissent arguing that the Supreme Court is a bunch of black-robed tyrants when they invalidate a law passed by Congress. In other words, despite his carefully cultivated reputation as a principled “originalist,” the only principle that guides Antonin Scalia is “what he can get away with.” For him, it’s the outcome that matters. The justification comes after. Is that true of the Court’s liberals as well? Maybe. But it’s a little rich to make that charge when your own hypocrisy is on such obvious display.

Dylan Matthews notes that immigration equality is now law:

This does open the door for bi-national same-sex couples to be treated equally under the law. That means that comprehensive immigration reform probably need not include a provision specifically tailored to making sure bi-national partners of same-sex couples can get visas automatically, the same as opposite-sex partners. As Paul Smith, a partner at Jenner & Block and arguably the leading gay rights litigator in the country (he won Lawrence v. Texas, overturning state bans on gay sex), told me, “My understanding is that the elimination of DOMA would by itself mean that all bi-national married couples would have the same rights, whether same sex or not.”

Steve Benen points out another consequence, among many:

The Defense Department, for example, ended DADT, but could not apply equal benefits to gay servicemembers because of this law. Now that it’s been struck down, it’s no longer an issue.

Hagel has released a statement to that effect:

The Department of Defense welcomes the Supreme Court’s decision today on the Defense of Marriage Act.  The department will immediately begin the process of implementing the Supreme Court’s decision in consultation with the Department of Justice and other executive branch agencies.  The Department of Defense intends to make the same benefits available to all military spouses — regardless of sexual orientation — as soon as possible.  That is now the law and it is the right thing to do.

And June Thomas reflects on what the decision means to her personally:

When the Supreme Court’s decision on the constitutionality of the Defense of Marriage Act was released Wednesday morning, I was genuinely surprised and totally unprepared. I knew it was coming, but I hadn’t dared to hope that the court would do the right thing for families such as mine. Votes had gone the wrong way too many times in the past. Feelings had been hurt. What did straight Americans have against their gay and lesbian compatriots that they would go into a voting booth or stand on a legislature floor and choose to deny them basic civil rights?

As the decision was announced, I finally allowed myself to experience a feeling of belonging.

(Photo: American University students Sharon Burk (L) and Mollie Wagoner (R) kiss after hearing that the U.S. Supreme Court ruled that the Defense of Marriage Act (DOMA) is unconstitutional at the Supreme Court, June 26, 2013 in Washington, DC. By Mark Wilson/Getty Images)