Wednesday, June 26, 2013

Conflict between DOMA case and Prop. 8 Case Could Cause Problems

Hollingsworth v. Perry and United States v. Windsor came out today to eager and anxious audiences.  Let us not celebrate too effusively about those two same-sex-marriage cases, because there is a problem here that will spark more costly and socially painful litigation. 

DOMA was declared unconstitutional because it invades states' rights about the definition of marriage, an inherently state prerogative: it is a celebration of federalism, implicating values of the full faith and credit clause and the 10th Amendment.

Due to justiciable standing issues, the Prop. 8 case was allowed to stand on the ruling below that proscriptions against "marriage," where the same social/contractual rights can be enjoyed by same sex couples without them being able to enjoy the use of the term "marriage," violates equal protection [on the lowest standard of all, rational basis]. It really is, on the substance, a word usage issue, not a substantive civil rights issue. 

So there's the problem - if the subject is one of equal protection, then the states cannot decide the policy and practice; if the states can decide the policy and practice, then equal protection is not involved!  So, which is it - does the issue sound in E/P or federalism?  It cannot be both - they are mutually contradictory.

There will be much litigation coming out of these constitutionally inconsistent cases, and one can imagine Scalia grinning in the background [much as Marshall must have been when he penned Marbury v. Madison] when these cases were being discussed, and when he read aloud his dissent in the DOMA case.

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