The far-reaching effects of the Supreme Court's gay marriage decisions

The effective nationalization of gay marriage, and the way the Court would have ruled if America were still a Constitutional republic Photo: AP

HOUSTON, June 28, 2013The Supreme Court handed down critical and far-reaching decisions in two cases involving gay marriage on Wednesday that will forever change American society and jurisprudence for the worse. The negative implications of these decisions have little to do with gay marriage, actually, but rather the effects that these decisions will have on democracy and federalism in the future. The decisions need to be understood both individually as well as together to really comprehend the myriad of problems that were created.

There was one clear way to maintain adherence to the Constitution in both cases, but the philosopher kings on the Court who believe they are so very enlightened, imposed their will on us little people without any regard to the actual text of the Constitution.


SEE RELATED: DOMA and Prop 8: The Supreme Court’s radical conservatism


Defense of Marriage Act case, US v. Windsor

The issue in US v. Windsor, the first of the two cases decided on Wednesday, was whether or not the Defense of Marriage Act (DOMA) was constitutional. DOMA was voted into law in 1996 by an overwhelming majority in both houses of Congress (85-15 in the Senate) and President Clinton signed it into law. The act did two things: First, it defined marriage as it applied to federal government programs and benefits, as a union between one man and one woman; Second, it ruled that states that did not approve of gay marriage were not required to recognize the gay marriages that occurred in states that did approve of gay marriage.

The main purpose of the law was to avoid the effective nationalization of gay marriage by using the “Full Faith and Credit Clause” of the Constitution to force every state to recognize gay marriage regardless of whether or not the law of the state in question allowed for gay marriage or not. The full faith and credit clause requires states to recognize most contracts and legal rulings that are made in other states, so that an individual who entered into a contract or had a legal ruling against him could not escape his responsibility simply by moving to another state.  

Writing for the 5-4 majority, Justice Anthony Kennedy’s decision dissolved the provision that defined “marriage” for the purpose of the federal benefits, as only between one man and one woman, but left alone the part allowing individual states to define marriage as they please. Many conservatives are saying that the decision isn’t so bad because it protected federalism by maintaining the provision that allowed for states to define marriage as they choose. This analysis misses the big picture.


SEE RELATED: Supreme Court strikes DOMA, Prop 8: marriage equality not reality yet


The problem lies with just how Justice Kennedy wrote the decision and the words he used to describe DOMA and its proponents. Justice Kennedy stated that DOMA inflicts an “injury and indignity” on gay people to the degree that it “denies an essential part of the liberty protected by the Fifth Amendment.” The majority went on to say that opponents of gay marriage are “motivated by a bare congressional desire to harm a politically unpopular group,” and supporting DOMA was equivalent to “denigrating” gay people.  

Essentially, in Justice Kennedy’s eyes, anyone who disagrees with the philosopher kings and is not in favor of gay marriage is a bigot who does not like gay people. He is directly referring to Bill Clinton and the majority of Americans who are the constituents of the 85 Senators and the vast majority of the representatives that voted for, and signed DOMA into law.

Justice Kennedy explicitly states that this law was enacted out of animus and hatred towards gay people, and there is no other possible explanation. Another Supreme Court decision (Romer v. Evans), in which the majority opinion was also drafted by Kennedy, holds that laws enacted by a majority with animus and hatred towards a minority group of citizens, has no rational ground of justification and will be overturned.

Kennedy knows that liberal judges will now use his opinion to overturn laws and constitutional provisions in states that do not allow for gay marriage and will force those states to recognize gay marriage. As sure as the sky is blue litigants are already lining up across the country to file civil rights lawsuits in federal courts in states that don’t recognize gay marriage. Essentially, federalism, or the right for each state to make decisions for itself, has taken a very harsh blow because the philosopher kings feel that we should all accept their view on this issue, and we all soon will.


SEE RELATED: SIEGEL: DOMA and Prop 8: Are the courts replacing democracy?


Proposition 8 case, Hollingsworth v. Perry

The Second case, Hollingsworth v. Perry, challenged California’s proposition 8. Proposition 8 was an amendment to the California state Constitution that was voted into place by the people of that state defining marriage as a union between one man and one woman. The Democratic governor and attorney general did not agree with the amendment, so they simply decided not to recognize it, and accordingly, the will of the people.

Gay litigants later filed a civil rights lawsuit and the governor and attorney general, who are required to defend the laws of that state in federal Court, just chose not to defend it. Therefore, the petitioners who initially got the issue on the ballot stepped in to defend the law. The lower district Court in San Francisco said that the petitioners and citizens of California had no standing to defend the law and that it was the duty of the government to defend the laws of California in Court. Therefore, if the government chooses not to defend the case, no one can. “Standing” is a legal term that requires the parties to demonstrate sufficient connection to, and harm from, the law or amendment challenged to justify their participation in the case.

This decision meant that because the governor chose not to defend the amendment in court, the amendment (and will of the people of California) was invalidated. The Supreme Court took up the issues as to whether or not the petitioners had standing as well as whether or not proposition 8 violated the federal Constitution’s equal protection clause of the Fourteenth Amendment.

The Court decided, in another 5-4 decision, that the petitioners did not have standing and could not defend the law in court. They did not rule on proposition 8 directly, but they did not have to. This ruling effectively validated the decision of the district court, and allowed the government of the state of California to override the will of the people and the Constitution of that state, simply by refusing to defend the law in court. This will set a devastating precedent, will have a chilling effect on democracy, and will rip power away from the people and transfer it to the ruling class in each state.

Combined Effects

Together these cases have two main implications: First, any constitutional amendment defining marriage as a union between a man and a woman is motivated by animus and hatred of gay people and has no reasonable justification. Using the precedent in the Romer case, those amendments and laws can be overturned.

Second, the governor of a state can invalidate an amendment or law defining marriage as between one man and one woman (and possibly any  other constitutionally questionable issues, like the death penalty and/or abortion restrictions) simply by refusing to defend it in court. The lower court can then use the Romer precedent coupled with Kennedy’s majority decision in Windsor, to strike down the gay marriage law or amendment and there will be no litigant to appeal that decision other than the governor, who has already refused to do so. The result will be that the governor’s decision not to defend the amendment or law overrules the will of the people.   

The most unfortunate part about these decisions though, is that the framers of the Constitution had no intention whatsoever to allow the federal government to regulate marriage. Nowhere in Article 2 of the Constitution (the section that enumerates the distinct and limited powers that the federal government has) can the word marriage, or anything that can be understood to include marriage be found. When America was a constitutional republic, before this post-Constitutional age we are currently in began, the Tenth Amendment reserved the power to define and regulate marriage (as well as anything else that isn’t directly enumerated to the federal government in Article 2) to the states and the people.  

How the Court Should Have Ruled

The Constitutional position in the Windsor case would have been to deny the challenge to DOMA in its entirety, because DOMA does not regulate marriage, but solely defines it for the purposes of federal benefits programs and reinforces federalism by not requiring every state to acknowledge gay marriage just because one state approves of it.

The correct decision in Hollingsworth, according to the Constitution, would have been to allow the petitioners standing and to deny the challenge to proposition 8 entirely, because gay marriage is not a matter of equal protection like slavery and segregation. The equal protection clause and the Fourteenth Amendment were put in place to protect black Americans and to fight against segregation and institutional racism. It is a disgusting slap in the face to those black Americans who suffered truly awful discrimination to compare their struggle to the fact that some states maintain the traditional definition of marriage, that every country and society for the history of the world has recognized.

It is very sad when every June America waits for the philosopher kings to hand down edicts without any idea of how the Court will rule on very critical issues that have very far-reaching effects. The founders did not intend for that. The Constitution was written with the intention that most every American be able to understand what was and wasn’t unconstitutional. Today, in this heightened age of judicial activism and soft tyranny, the fact that the Constitution obviously does not enumerate any authority over marriage to the federal government is irrelevant. The philosopher kings will impose their will on the American people and there is no action that we can take to avoid it.

Justice Antonin Scalia put it best in his dissent in the Windsor case stating that the “jaw-dropping” decision “envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all Constitutional questions, always and everywhere ‘primary’ in its role. The image of the Court would have been unrecognizable to those who wrote and ratified our national charter.”  


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James Richard Edwards

James R. Edwards is a medical malpractice defense attorney in Houston, Tx. He obtained a Bachelor’s degree from LSU (Geaux Tigers!) in Psychology and subsequently went on to attend the University of Houston Law Center. James became interested in politics in law school because of the consistent and oppressive disgust and revulsion shown by the staff and Professors for the Constitution and for America in general. He is a tireless advocate for federalism and minimizing the impact the federal government has on all of our lives. 

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