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Contrary to Warnings From The Right The Sky Hasn’t Fallen After DOMA & Prop 8 Decisions

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Say good-bye to DOMA and to discrimination against same sex couples. Say hello to the revived California law recognizing marriage equality.  While the Supreme Court didn’t directly address the constitutionality of same sex marriage, both of its rulings, count as victories for marriage equality.

Justice Kennedy wrote the majority opinion for U.S. v. Windsor.  He was joined by Justices Ginsberg, Sotomayor, Breyer and Kagan in which they concluded that DOMA violates the equality clause.

DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. Pp. 13-26. (a) By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States. Congress has enacted discrete statutes to regulate the meaning of marriage in order to further federal policy, but DOMA, with a directive applicable to over 1,000 federal statues and the whole realm of federal regulations, has a far greater reach. Its operation is also directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect.

In pla

in English, this means that Congress disrespected the rights of states to recognize same sex marriages in Section 3 of DOMA when it referred only to marriage between members of the opposite sex. It also means that any reference to marriage or a spouse in federal laws should apply with equal respect to same sex marriages as marriages between a man and a woman.

In practical terms, this means that the Federal government will recognize same sex marriage for the purpose of tax returns, Social Security and other federal dealings.  This falls short of the court falls short of giving constitutional recognition to same sex marriage or mandating the states to recognize same sex marriage.

In  HOLLINGSWORTH v. PERRY, the Prop 8 case, the Court rejected the plaintiff’s case based on their lack of standing to appeal a lower court decision.  The Chief Justice wrote the majority opinion and was joined by the liberal wing of the court. This time Justice Kennedy joined Alito, Scalia and Thomas in dissent.


Article III of the Constitution confines the judicial power of federal courts to deciding actual “Cases” or “Controversies.” §2. One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so. In other words, the litigant must seek a remedy for a personal and tangible harm. Although most standing cases consider whether a plaintiff has satisfied the requirement when filing suit, Article III demands that an “actual controversy” persist throughout all stages of litigation.

In this case,  the State government chose not to appeal a district court ruling that concluded Proposition 8 violates California’s constitution.  The plaintiffs decided to take up the fight and launched an appeal.  The Supreme Court didn’t question whether plaintiffs could challenge the law, only that they couldn’t appeal the lower court ruling.  Since they didn’t have standing, the Supreme Court vacated the Appellate Court’s ruling.

This means that recognition of same sex marriages in the states that do so will remain intact. Thanks to the DOMA ruling, the federal government must recognize same sex marriages with equal respect to that given to “traditional” marriages.  Now it’s a matter of getting the remaining states on board.  It may take some time, but it will happen.

According to reports, Justice Scalia had a meltdown over the majority opinion in the Prop 8 case, but contrary to the fear mongering by the religious right, the sky didn’t fall, and there aren’t any divine storm clouds in D.C.

Image: James Sansone Law

Correction:  Justice Scalia joined with the majority opinion in Hollingsworth v. Perry. and Justice Sotomayor joined in the dissenting opinion. His meltdown was in relation to the U.S. v. Windosr, the DOMA case.  I got it wrong in the intiial reporting.  My apologies to readers.

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