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.
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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