Four of the nine U.S. Supreme Court justices voted to hear challenges to the 1996 Defense of Marriage Act (DOMA), a federal law, and Proposition 8, a state initiative that led to an amendment to California’s constitution. Both provisions recognize the union between one man and one woman as the only legal definition of marriage.
Four justices can determine whether a case is heard, but five justices must vote together to render a decision. Some observers thought liberal members of the court voted to hear the case. However, emerging evidence suggests the court’s conservative members wanted to undertake the same-sex marriage issue before conservative voices on the court eroded any more – and before public opinion shifts even more.
Watching the U.S. Supreme Court is always a crap shoot, except “Box Cars” on the Supreme Court level adds up to nine instead of 12. Five-four decisions by this court are as common as rolling Lucky Seven.
Despite the unpredictable nature of the Supreme Court, justices are likely to issue a ruling in late June with at least two prongs.
First, the Defense of Marriage Act is likely to be struck down in a 5-4 decision. The key passage serving as the chief focus of constitutional challenge is Sec. 3, which reads:
“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.”
The implications of this wording mean gay employees of the federal government in same-sex relationships, wherever they reside, are prohibited from enjoying the same rights as traditional married couples to insurance or Social Security survivor benefits, as well from filing joint tax returns. This section also affects bankruptcy proceedings, immigration issues and even estate taxes.
Justice Ruth Bader Ginsburg commented during oral arguments that DOMA creates two types of marriage in states recognizing gay marriage. Heterosexual marriages, she said, are full marriages, whereas gay marriages under current federal law are a “sort of skim milk marriage.”
Justices Elena Kagan, Stephen Breyer, and Sonia Sotomayor will likely join Ginsburg in striking down DOMA. Justice Anthony Kennedy will be the swing vote, and he will probably vote with the liberal side, but for different reasons.
Kennedy will follow this line of reasoning: marriage has traditionally fallen under the jurisdiction of the states, so each state should be left to decide the issue for itself.
Oddly, another provision of DOMA addresses state concerns. Sec. 2 “Power Reserved to the States” provides:
“No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”
This specific provision essentially negates the “full faith and credit” provision of Article IV, Sec. 1, which reads in part:
“Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” Each state has traditionally granted full faith and credit to the marriages recognized by other states. Gay marriage has changed that recognition.
On Feb. 7, 2012, the Ninth Circuit Court of Appeals, in a 2-1 ruling, declared Prop 8 unconstitutional. My guess is the Supreme Court will decide to dismiss the challenge to the appeal. If so, that dismissal will be a victory for gay rights since the appellate ruling will stand.
The true uncertainty will be the impact the Supreme Court’s action will have on other states. Justices have already realized their decision cannot possibly be limited to just one state — California. Any decision will have national implications.
On May 8, 2012, North Carolina voters approved an amendment to this state’s constitution that placed a ban against same-sex marriage in the constitution, even though same-sex marriage was already not allowed in this state.
Sixty-one percent of North Carolina voters (1,317,178) voted for the amendment to define marriage as the union of one man and one woman. Thirty-nine percent (840,802) voted against the amendment.
Old North State voters probably thought they had settled the issue at the ballot box on May 8, 2012.
Maybe not.
Mike Parker is a columnist for The Free Press. You can reach him at mparker16@suddenlink.net or in care of this newspaper.