As many know, the Supreme Court heard oral arguments yesterday challenging the constitutionality of the Defense of Marriage Act ("DOMA"). During oral arguments, pointed questions by the Justices led many pundits to predict that the act (enacted in 1996) would be struck down. According to DOMA, the Act established federal marriage benefits to be restricted to interstate recognition of marriages between members of the opposite sex. In other words, between a man and a woman. The challenge was clear that defining marriage by gender violates both the separation of Church and State as well as the Equal Protection Clause of the 14th Amendment to the Constitution. But some of the Supreme Court Justices may have seen the argument in a different light.
With the Obama Administration declaring DOMA to be in violation of the Equal Protection Clause, the Solicitor General would not have a case to argue before the High Court, however, GOP Speaker Boehner forced the measure to be heard because he determined his GOP caucus supports DOMA and therefore, demanded the Act be defended. Due to the Take Care Provision of the Vesting Clause in Article II of the Constitution, (See "How Our Government Really Works, Despite What They Say"), the President is required to enforce Federal law, even if he deems the law to be "Unconstitutional." Hence, the justiciablility of the challenge to the Constitutionality of DOMA (and the granting of Certiorari by the Supreme Court). What concerns me though is not that the GOP supports heterosexual marriage over same-sex marriage (and they have consistently made it part of the their political platform for years), but the tone of the questions raised by the Conservative members of the Court. You see, some of the Justices seemed likely to overturn DOMA not on an argument of Equal Protection, but an argument instead that DOMA determining marriage violates the 1oth Amendment which reserved rights (however few) to the States - especially those traditionally reserved to States to determine that marriage can only be defined on a state by state basis (thereby ignoring the Equal Protection argument entirely).
According to the transcripts of the oral argument, Justice Kennedy asked the lawyers involved if they felt the Federal Government had the authority to "supersede the traditional authority and prerogative of the States to regulate marriage..." In response, the lawyer for the United States argued that the matter is vested in the Equal Protection argument, but the Court unanimously responded they felt it was not an issue of federalism, and instead was an issue of States' Rights to determine the fundamentals that constitute a valid marriage. Justice Scalia argued that he did not believe the Federal government could create" a new federal marriage that would not be a marriage under State law."
The reason I raise a cautionary flag is not because I believe DOMA to be constitutional, I do not. I do however, believe DOMA fundamentally interferes in the equal protection of citizens under the 14th Amendment and that alone is justification for the Court to rule it Unconstitutional. But a reading of the transcript of the oral argument might lead one to think the Court will toss it out as Unconstitutional not on Equal Protection grounds, but because Congress (the Conservative majority believes) may not have had the authority to determine fundamentals of marriage that have traditionally been considered "reserved" to the States under the 10th Amendment. Although DOMA might be ruled Unconstitutional, the mandate for legalizing same sex marriage may fall short and subsequent rulings may require additional argument if some States elect to pursue enforcement of marriage limited to a man and a woman. So instead of deciding the issue once and for all, they may leave the issue "clear as mud."
What really concerns me, however, is the line of questioning from the High Court challenging the authority of Congress to deal in areas "traditionally reserved to the States." Why should this be of concern? Because the same majority of 5 Supreme Court Justices might rule this summer that Section 5 of the Voting Rights Act of 1965 is no longer valid because the "archaic formula" of Section 5 should no longer be applied when States pursue their own "traditionally reserved" authority to determine the fundamentals of voter registration and elections. Let's hope I am wrong. But before you celebrate the defeat of DOMA, pay attention to the rationale the High Court may use in striking it down and how it might lead to other problems currently left ignored. In other words, "Be Careful For What You Wish For."
With the Obama Administration declaring DOMA to be in violation of the Equal Protection Clause, the Solicitor General would not have a case to argue before the High Court, however, GOP Speaker Boehner forced the measure to be heard because he determined his GOP caucus supports DOMA and therefore, demanded the Act be defended. Due to the Take Care Provision of the Vesting Clause in Article II of the Constitution, (See "How Our Government Really Works, Despite What They Say"), the President is required to enforce Federal law, even if he deems the law to be "Unconstitutional." Hence, the justiciablility of the challenge to the Constitutionality of DOMA (and the granting of Certiorari by the Supreme Court). What concerns me though is not that the GOP supports heterosexual marriage over same-sex marriage (and they have consistently made it part of the their political platform for years), but the tone of the questions raised by the Conservative members of the Court. You see, some of the Justices seemed likely to overturn DOMA not on an argument of Equal Protection, but an argument instead that DOMA determining marriage violates the 1oth Amendment which reserved rights (however few) to the States - especially those traditionally reserved to States to determine that marriage can only be defined on a state by state basis (thereby ignoring the Equal Protection argument entirely).
According to the transcripts of the oral argument, Justice Kennedy asked the lawyers involved if they felt the Federal Government had the authority to "supersede the traditional authority and prerogative of the States to regulate marriage..." In response, the lawyer for the United States argued that the matter is vested in the Equal Protection argument, but the Court unanimously responded they felt it was not an issue of federalism, and instead was an issue of States' Rights to determine the fundamentals that constitute a valid marriage. Justice Scalia argued that he did not believe the Federal government could create" a new federal marriage that would not be a marriage under State law."
The reason I raise a cautionary flag is not because I believe DOMA to be constitutional, I do not. I do however, believe DOMA fundamentally interferes in the equal protection of citizens under the 14th Amendment and that alone is justification for the Court to rule it Unconstitutional. But a reading of the transcript of the oral argument might lead one to think the Court will toss it out as Unconstitutional not on Equal Protection grounds, but because Congress (the Conservative majority believes) may not have had the authority to determine fundamentals of marriage that have traditionally been considered "reserved" to the States under the 10th Amendment. Although DOMA might be ruled Unconstitutional, the mandate for legalizing same sex marriage may fall short and subsequent rulings may require additional argument if some States elect to pursue enforcement of marriage limited to a man and a woman. So instead of deciding the issue once and for all, they may leave the issue "clear as mud."
What really concerns me, however, is the line of questioning from the High Court challenging the authority of Congress to deal in areas "traditionally reserved to the States." Why should this be of concern? Because the same majority of 5 Supreme Court Justices might rule this summer that Section 5 of the Voting Rights Act of 1965 is no longer valid because the "archaic formula" of Section 5 should no longer be applied when States pursue their own "traditionally reserved" authority to determine the fundamentals of voter registration and elections. Let's hope I am wrong. But before you celebrate the defeat of DOMA, pay attention to the rationale the High Court may use in striking it down and how it might lead to other problems currently left ignored. In other words, "Be Careful For What You Wish For."
RSS Feed
