DOMA and Prop. 8

My initial impressions: both judgements are troubling to me, for different reasons.

In the case of Prop. 8,  SCOTUS ruled that the plaintiffs had no standing to bring the case. In so doing, the justices have created a situation where the executive branch can effectively veto any law they don’t like by simply refusing to defend the law. That’s a horrifying change to the balance of power between governing and governed.

I’m still working my way through the Prop 8 decision, but legal eagles who have read it are invited to help me out. Forget the gay-marriage stuff for a second and focus on the process. Am I right in understanding that the Court’s now essentially held that if the people of a state pass a popular referendum on whatever subject and then that referendum is challenged and struck down at the trial-court level, they have no right to appeal? They get one bite at the apple and then, if the executive decides he doesn’t like the referendum enough to choose to appeal it himself, there’s nothing a single member of the public can do to ask an appellate court to reconsider the lower court’s decision — even though many millions of voters voted directly to enact the law? That seems … odd.

From hotair.com

Has the initiative process in 26 states now been fatally undermined?

From National Review

Meanwhile, by stepping back from Prop 8, the Supreme Court lets stand lower federal court rulings invalidating, largely on equal-protection grounds, the referendum-passed California constitutional amendment banning same-sex marriage in that state. This leaves open the question of whether other state-level bans will survive challenges in federal court. The Supreme Court declined to intervene in the appeal to reinstate Prop 8 because, as Roberts said, “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.” California’s executive branch has refused to defend Prop 8, which raises an interesting, if moot, question about what referenda really mean. The people directly pass a law—a constitutional amendment, in this case—but then elect a government that refuses to defend it. This kind of thing might recur: constitutional amendments aren’t easy to repeal, but if nobody enforces them, they’re dead letters.

From American Conservative

In the case of DOMA, SCOTUS struck down the law on the claim that there is no reason for opposing gay marriage other than animus toward gays. By making this statement, they are implying that there does not exist any argument against gay marriage that is compelling in its logic or sincere in its motives.

Unless something dramatic changes in the drift of public opinion, the future of religious liberty on these issues is going to depend in part on the magnanimity of gay marriage supporters — the extent to which they are content with political, legal and cultural victories that leave the traditional view of marriage as a minority perspective with some modest purchase in civil society, versus the extent to which they decide to use every possible lever to make traditionalism as radioactive in the America of 2025 as white supremacism or anti-Semitism are today.

From The New York Times

People who are concerned about having humanist beliefs shoved down their unwilling throats – and thus losing their own right to their own religious beliefs – are absolutely right to be worried.  There is no way to detach beliefs about sanctity, marriage, sexuality, concupiscence, sin, family, and obligation from religious teaching – these issues are at the center of what religious teachings are all about.

SCOTUS has endorsed a set of  beliefs held by exactly one religion (humanism). These beliefs are in direct conflict with the teachings of every other religion in the world. What’s worse: these teachings are not grounded in reality. There is no reason to suppose that family is or can ever be as fluid as gay rights activists want to believe. We are conducting an experiment on an entire generation, but we already have reason to suppose the experiment won’t hurt – and will do harm.

The conflict between sexual liberty and religious liberty is unlikely to be one the religious will win, in large part because of the broad and increasing acceptance of an idea President Obama has espoused more than once in public: that the religious have a freedom to worship, and that’s where it ends. When you leave the pew, you must leave your faith there. Among the religious, this is absurd – their entire lives are defined by their faith, in ways large and small.

From Ricochet

Conservatives do not intend to drop the fight (however much they are told “resistance is futile“):

This fight is not over.  The ruling did not explicitly create a right to gay marriage and it did not overturn laws prohibiting gay marriage in states where such laws are on the books (like Wisconsin).  If you look at the demographics of Prop 8 you’ll note that it got something like 52% of the vote in California and Obama carried that state with 61% of the vote.  These are not, contrary to what liberals tell you, votes passed by bigoted blue haired lily white octogenarians carrying Bibles and Rosary beads.  People who voted Democratic (and Obama won Wisconsin, too) in past elections voted for the traditional definition of marriage.

From Cream City Conservative

Mostly, I tend to agree with those who are glad to see the decision kicked back to the states:

A decision invalidating California’s Proposition 8, however welcome for the cause of marriage equality, would be a loss for federalism and a constitutional mistake.

The system of federalism is an essential guarantor of individual liberty and constraint on governmental power. As the Supreme Court noted in a unanimous 2011 decision, “federalism secures the freedom of the individual.” It does this by, among other things, forcing states to compete with one another for citizens by providing different mixes of policies (taxes, services, and legal guarantees) in an effort to discover the best mix. Where states get it wrong, such as by imposing excessive taxes or unjust laws, people remain free to “vote with their feet”  and move to a jurisdiction with laws more in line with their beliefs.

From Reason

Best quote of them all IMO:

They should trust the people more. If marriage is to be redefined, it ought to be by the American people, not unelected judges. We’ve seen the clashes already in California on this point, but by taking the issue national, the Court will sow social discord in significant ways with yet another enormous expansion of the Equal Protection standard, one which will inevitably set it up for future difficulties as plaintiffs take this new path to a logical conclusion. The reaction will not be as long-term as Roe, but it will be more divisive than the elites in media and politics expect, as any issue is where a decision is forced rather than allowing the citizenry to come around to the idea, where they view such matters as the working of legitimate democracy.

Ultimately, this debate is likely to do more damage to the public square than it ever should have in a system which understood the importance of balance, patience, and faith in the federalist approach that served this nation so well in the past. Trust in government is already at its nadir, and Supreme Court approval is near record low. Perhaps this is because the people understand they no longer direct the course of legitimate government that is supposed to serve their interests, and that on issues of life, death, and love, the will of a far-off power is now regularly imposed on them.

From Ricochet

Gay marriage advocates are relying too much on courts, and not enough on persuasion.

Advocates believe that gives them an opening to challenge marriage bans in the 31 states where they’re currently on the books. If they’re right and the bans start to fall, gay marriage could quickly be legal across the nation.

From The Atlantic

They anticipate a quick victory – too quick; they don’t worry about whether that victory is viewed as legitimate, but they should. They have too much faith in might makes right, and not enough understanding of how real social change happens.

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