Wednesday, June 26, 2013

The Supremes and Gay Marriage

The decisions on gay marriage are likely to come down from the Supreme Court mountaintop either today or tomorrow. For what it's worth, this is how I hope things happen:

  • The Court strikes down the Defense of Marriage Act; and
  • The Court upholds Prop 8 and slaps down the Ninth Circuit
The way I see it, there are two issues here, both related to federal overreach. DOMA, which essentially proscribes most federal benefits for gay couples, was and is an overreaction and too broad. If it is found unconstitutional, no one should shed a tear.

The Prop 8 issue, at least to me, is less about the underlying issue of gay marriage and more about the idea that a single federal judge can overturn the will of the people, as expressed by a ballot measure, and declare an amendment to a state constitution as unconstitutional. That's what happened in this case and it sets a bad precedent, even if the Ninth Circuit rubber stamped what the judge did. I would imagine that if a ballot initiative to repeal Prop 8 were to come to the voters of California now, it would pass, and that would be the proper remedy for the underlying issue. And if you're comfortable with giving federal judges that power because it achieved a policy goal, imagine a judge on a more conservative circuit striking down a ballot initiative you hold dear and his/her fellow judges rubber stamping the decision. Would you be okay with that?

A decision by the court to toss out essentially all the other existing state laws on gay marriage would be much like what happened in Roe v. Wade. And it would be a bad idea. We've just passed gay marriage in Minnesota. The legislature debated the matter and passed the bill and the governor signed it into law. No matter what you think of the merits of the law itself, it was done properly. Our elected representatives acted and as a citizen, I can hold my representatives to account if needed. The Supreme Court? Not so much.


Gino said...

i'm on board with same sex marriage rights, but i want prop 8 upheld for the reasons you state.
i can vote against it next time.

yet, on the other hand... this is just the story of democracy in CA. every single right-of-center populist intiative gets ruled as 'unconstitutional' by our state courts (for the last 30yrs, at least).... while the left-of-center ones are bullet proof.

short story: democracy is a sham. thats why i gave up. i no longer believe in it, its all about the ends for me now.

Mr. D said...

It's a shame it's come to that, Gino. But it has.