Wednesday, June 26, 2013

DOMA and Prop 8 Rulings: Initial Reactions

I have not read the full rulings for either of the cases the Supreme Court ruled on today, but since people are talking about them now, I want to weigh in quickly.

Thoughts on the role of the Supreme Court

Sometimes we want the Supreme Court to play Solomon, resolving difficult cases between people by looking for the best solution. But the Supreme Court is not actually supposed to care about the solution nearly so much as about the procedure. They are supposed to be umpires, not arbitrators.

And umpires are not supposed to pick who wins the game. They are just supposed to see whether rules are being followed.

Rather than reacting to these decisions, then, as for or against one side of the immediate issue, can we talk about their impact on the rules of the lawmaking process?

What the decisions were

What did the majority in each case actually decide about rules?

The DOMA ruling seems to be that the Federal Government cannot reject a given state's definition of marriage. In this case, that means that a same-sex couple with a marriage license must be considered married under federal law. The ruling did not, however, insist that states accept each others' marriage certificates with equal impartiality. And it didn't weigh in on what the definition of marriage is beyond "whatever individual states say it is." 

The Prop 8 ruling was even more technical. It is that if a state law is challenged in court, only official representatives of the state have the right to defend that law. Which in this case means that all legal actions over Prop 8 since Vaughan Walker's August 2010 District Court ruling don't count. 

Prop 8 Analysis

While one side-effect of the Prop 8 case decision is that same-sex marriages will likely resume in California, the actual issue in the Supreme Court case is really about who can defend a law. I don't want to say here whether the Court was right or wrong, because it's fairly complicated. But I do think it's clear that there's a procedural problem here that needs to be fixed.

The problem I see with the court's Proposition 8 ruling is that it throws a wrench into California's system for balancing the authority of state government with the direct authority of the people.

Some background to make this clear. In the summer of 2008, California's state supreme court struck down all language in the state law code specifying genders in reference to marriage. Many Californians celebrated the ruling and the same-sex marriage rights it opened up, but others objected to having such a fundamental change come from a few justices.

And California had a system for dealing with disagreements with its high court or other top state authorities. When they were strongly at odds with their state government, California allowed its voters to change the state constitution through a fairly laborious and expensive process of setting up and passing a voter initiative. In other words, you could check the top of the state appeals system by going straight back to the roots of power. It's sort of a check-and-balance circle instead of pyramid.

Proposition 8 advocates managed to get the old definition of marriage onto a voter initiative and narrowly passed it. But opponents, now finding themselves at odds with the process, looked for the next method of appeal--which was leaving the state system for the federal system.

Under the federal system, of course, anyone can challenge a law they feel harmed by. But not anyone can defend a law: in most cases, only the government which passed the law can defend it. And California's administration--which hadn't actually passed the law in the first place--wasn't really interested.

This difference between the federal system and the California system creates a dilemma. California allows voter groups to check the state government--but those same voter groups rely on the state government for protection in federal appeals. Should the federal court system honor the spirit of California's voter initiative system--or should they stick to their own standard of who can defend a law?

I can't say that I blame the Supreme Court for sticking to federal precedent, but I think the Prop 8 decision leaves California with some thinking to do about its process of voter initiatives. If California still wants voter initiatives to be a meaningful check on the state government's power, they should find a way to give initiative backers standing--maybe by having each initiative name a special representative who would be empowered within the state attorney's office to defend that initiative.

Or California could give up on the voter initiative system altogether. It just seems strange to me to hold out the promise to citizen groups that they can check the state bureaucracy and then let the state bureaucracy's disinterest be the deciding factor in the federal system of courts.

The DOMA case 

The central rules issue here seems to be: who defines marriage? And the answer seems to be twofold: 1) the states do and 2) the federal government causes harm to individuals when its definition conflicts with the state laws they've built their lives around.

As a Solomon-esque answer to the debate over same-sex marriage, that has a certain appeal. Let New York have the final say on New York. Let Utah have the final say on Utah. Keep the federal government out of the debate so that no one ends up married on one form and not another.

Unless, of course, a married couple from New York moves to Ohio. In that case, they should be married on New York forms, unmarried on Ohio forms, and, um...married on federal forms but only if they attach a notarized copy of their New York marriage license? Or unmarried on federal forms until they move back to New York? Or something?

I'm curious to see how that part will work out and about how we'll reconcile the idea that DOMA caused active harm by creating a conflict between marriage laws with the idea that each state can be allowed to define marriage for itself. If federal-state conflicts on such an emotional issue are unconstitutionally harmful, I'm not sure how state-state conflicts are going to stay somehow okay. 

Which leads me to another question about the idea that states have the right to define marriage: will the same rules hold if a state changes the definition of marriage again?

Imagine, for example, that New York decides to stop associating marriage so closely with sexual relationships and issues marriage licenses to any two adults interested in keeping a household together long-term. These living arrangements are common, of course: why should two people with a sexual relationship and no intention of having kids get benefits which are withheld from, say, two divorced sisters now raising their children together?

The logic of the DOMA ruling seems to be that New York has the right to redefine marriage to include these people. After all, marriage is what states make it.  The DOMA ruling allows suggests that if taxpayers and voters in other states object and try to restrict benefits at a federal level, they are causing an unconstitutional level of harm to the citizens of New York.

But would the court be willing to uphold the same logic here? Would they balk if the extension to siblings also resulted in large numbers of close friends deciding to share mortgages and tax privileges despite their disinterest in sharing a bed?

I'm wandering a bit, but I think the question I'm asking is whether the court really believes that states define marriage, or whether it's still relying on a cultural understanding of marriage not rooted in law so much as in media. Right now, our stories associate marriage primarily with committed romantic love and intimacy, and the court seems to want to limit the rights of the federal government to go against that culture. It has done so, in the DOMA decision, by saying that states choose their own marriage laws and the government has to accept them, but I'm not sure that's a standard we'll follow for long.

If a state were to reverse its recognition of same-sex marriage, would the Supreme Court stick to its states' rights position? I don't know. I sort of doubt it, based on Kennedy's assessment of the human damage of federal restrictions. 

If a state were to extend the definition of marriage further, would the Supreme Court still bar the federal government from distinguishing between marriage types? I don't know. It might depend on how big the change felt to the justices.


  1. I wanted to say something useful about these rulings when they came, but having finished it all looks like second-rate peanut-gallery untrained lawyering.

    Oh well. Maybe I'll have something more useful to say by next week.

  2. Actually, i think you hit the nail right on the head. You've identified the troubling consequences of the court's reasoning much like any lawyer would do. See the three posts analyzing the marriage-case decisions at this blog: I dare say that we'll see DOMA (unless repealed by Congress) and other same-sex marriage cases before the court in the coming years.



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