Supreme Court Strikes Down DOMA and Dodges Larger Gay Marriage Issue.

Today the United States Supreme Court ruled that Section 3 of the federal Defense of Marriage Act ("DOMA") is unconstitutional.  The Court also ruled that  Proposition 8 proponents lacked standing to appeal the U.S. District Court ruling striking down Proposition 8 and ordered the Ninth Circuit to dismiss the appeal, thereby reinstating the District Court ruling.  While I am not surprised in many ways, I'd be lying if I did not admit that I had secretly hoped for a broad pro-gay marriage in Perry.

Back when the Supreme Court took the cases of Hollingsworth v. Perry and United States v. Windsor, I suspected that the Court would chicken out and avoid the larger issue of gay marriage on a national scale and I speculated that the issue of standing would be used to dodge making a larger decision.  I even referenced the case of  Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) and Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), that were both cited in today's ruling in Perry that the Proposition 8 proponents lacked standing to appeal the U.S. District Court ruling striking down Proposition 8.   Here are excerpts from the ruling in Perry:

Article III [of the United States Constitution which established the federal court system] demands that an “actual controversy” persist throughout all stages of litigation. Already, LLC v. Nike, Inc., 568 U. S. ___, ___. Standing “must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Arizonans for Official English v. Arizona, 520 U. S. 43, 64. The parties do not contest that respondents had standing to initiate this case against the California officials responsible for enforcing Proposition 8. But once the District Court issued its order, respondents no longer had any injury to redress, and the state officials chose not to appeal. The only individuals who sought to appeal were petitioners, who had intervened in the District Court, but they had not been ordered to do or refrain from doing anything. Their only interest was to vindicate the constitutional validity of a generally applicable California law. As this Court has repeatedly held, such a “generalized grievance”—no matter how sincere—is insufficient to confer standing. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 573–574.

A litigant “raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.” 

Article III standing “is not to be placed in the hands of ‘concerned bystanders,’ who will use it simply as a ‘vehicle for the vindication of value interests.’” Diamond, 476 U. S., at 62. No matter how deeply committed petitioners may be to upholding Proposition 8 or how “zealous [their]advocacy,” post, at 4 (KENNEDY, J., dissenting), that is not a “particularized” interest sufficient to create a case or controversy under Article III.

Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.

As noted, the ruling striking down Sec. 3 of DOMA is also not surprising and is in some ways reminiscent of the ruling in Romer v. Evans which was also authored by Justice Kennedy.   Here are some core excerpts from the ruling in Windsor that found that DOMA deprived same sex married couples equal rights and protections under the law and that DOMA was motivated by anti-gay animus:

The design, purpose, and effect of DOMA should be considered as the beginning point in deciding whether it is valid under the Constitution. By history and tradition the definition and regulation of marriage, as will be discussed in more detail, has been treated as being within the authority and realm of the separate States. Yet it is further established that Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges.

DOMA has a far greater reach; for it enacts a directive applicable to over 1,000 federal statutes and the whole realm of federal regulations. And its operation is directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect.

Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may  vary, subject to constitutional guarantees, from one State to the next. 

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.  Depart­ment of Agriculture v. Moreno, 413 U. S. 528, 534–535 (1973). In determining whether a law is motivated by an improper animus or purpose, “[d]iscriminations of an unusual character’” especially require careful consideration. Supra, at 19 (quoting Romer, supra, at 633). DOMA cannot survive under these principles.

DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.  The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. 

A future post will sort out where these rulings leave us - especially those of us living in anti-gay states like Virginia. We will also look at the shrieks and wailing coming from the Christofascists.