Why the DOMA Ruling is a Victory For Conservatives Too
On Wednesday, the Supreme court ruled, 5 to 4, that the Defense of Marriage Act was unconstitutional.
The Defense of Marriage Act, known as DOMA, defined marriage as between a man and a woman and prevented same-sex couples that are legally married in their home states, to be recognized as married on the federal level, which impacts more than 1,000 different laws on the books relating to married couples.
The majority opinion, written by Justice Kennedy, lists all the various ways in which DOMA violated the Equal Protection Clause in the Constitution, but the opinion stops short of declaring same-sex marriage is a right for all Americans, and rather takes the stance that since family issues, including marriage, and almost completely controlled at the state level, the federal government must now recognize legitimate state-sponsored marriages, regardless of their composition.
In both Justice Roberts and Justice Scalia's dissents, the issue wasn't with gay marriage, but with standing. Like in the Prop 8 case, the named defendant in the case wasn't the one defending the law, but a third party, and Roberts and Scalia both stayed consistent between the two rulings.
Justice Alito, and to a lesser extend Justice Roberts, claimed that Congress passes laws that effect strict subsets of people all of the time and that by identifying heterosexual married couples, they are following an established precedent. He, like Scalia, refrained from explicitly stating that gay marriage is somehow morally wrong and instead takes the position that DOMA is simply not unconstitutional for the same reason any other laws that are aimed at specific groups are not unconstitutional.
There were three different dissenting opinions, however it is Justice Scalia's scathing remarks, read out loud in the courtroom, that have garnered the most attention:
"We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court's errors on both points spring forth from the same diseased root: an exalted conception of the role of this institute in America ... The Court is eager — hungry — to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges' intrusion into their lives. They gave judges...a power to decide not abstract questions, but real, concrete 'Cases' and 'Controversies.' Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then are we doing here?"
Scalia's arguments have a grain of truth to them. As a strict constrionist, I often find myself on the wrong side of a supreme court issue, but for the right reasons. For instance, while I opposed the Affordable Care Act, I agreed with the Supreme Court that so long as the mandate penalty was considered a tax that one opted out of by buying health insurance, the ACA was still constitutional. As stated in the court's opinion back then, "it is not our role ... to pass upon its wisdom or fairness."
However, I partially disagree with Scalia here as the defendants in the DOMA case were the House of Representatives, meaning the government was still defending the case, just a different branch. This is unlike the Prop 8 case where the defendants of the law were not Representatives of the government and therefore had no direct interest in the case.
I also believe this victory to be a ruling for conservatives and liberals alike.
Liberals, libertarians, and socially liberal Republicans get the repeal of DOMA, something we've wanted for some time. It is another step forward in ensuring civil rights for all Americans.
Conservatives get two victories. The SCOTUS did not render judgement on the general issue of gay marriage, so they can still fight the fight on a state by state basis. But more importantly, I think, Conservatives get a strong affirmation of State's Rights by the Supreme Court. The court, while stating that the act violates the Equal Protection Clause, also makes sure to state that it is a violation specifically because marriage is a state institution and the Federal government has no compelling interest to disregard the will of a State government to recognize same-sex marriages.
We find ourselves in the unusual situation where the conservative justices are upholding a law that amounts to a federal power grab. The federal government is picking and choosing which state's laws it will respect in full, and which state's law it will edit and cherry-pick from. This ruling will not only set a precedent in civil rights legislation, but, I think more importantly, it will change the way courts will view the separation of federal and state powers in the future.