Another Interesting Session

Another Interesting Session


Two cases dealing with same-sex marriage have been granted certiorari before the US Supreme Court. One, United States v Edith Schlain Windsor, deals with the constitutionality of the Defense of Marriage Act (DOMA), and the other, Hollingsworth v Perry, deals with the constitutionality of California’s Proposition 8. Although the bulk of the media will swoon over the plight of same-sex couples, the issues here are legal – that is, does the Constitution give the federal government a role in deciding such things.

Windsor is interesting because it contains hazards for both the right and left. DOMA, which in 1996 passed the House 342 to 67 and the Senate 85 to 14, defines marriage in Section 3, for the purpose of the approximately 1,100 federal laws that pertain to marriage, as a legal union between one man and one woman. Its supporters considered this necessary as a prophylactic against single-sex marriages for the purpose of federal benefits, ranging from tax breaks to estate probation. Detractors cite the 14th Amendment’s equal protection clause as obviating the attempt. The Supreme Court will weigh the 14th Amendment against the 10th Amendment’s enumerated powers clause, giving states and the people powers not mentioned in the Constitution, as amended. Hollingsworth argues that California has no right to bar same-sex marriages, and specifically addresses one of the two suits filed to invalidate the referendum.

Most cited in same-sex debates is the 2003 Lawrence v Texas decision, striking down a Texas anti-sodomy law. The Court declared that intimate sexual conduct between consenting adults was off limits to government regulation. Justice Kennedy, writing for the majority, noted that “the Court’s decision would have no wider application.” “Do not believe it!” conservative Justice Antonin Scalia roared in dissent. “Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned,” he wrote. And within months, Massachusetts became the first state in the union to codify the legitimacy of same-sex marriage.

Massachusetts, eight other states and the District of Columbia currently recognize same-sex marriages. At the same time thirty states passed constitutional amendments defining marriage as a union between one man and one woman, and eight others have adopted statutes enforcing the same traditional definition.

This is an interesting combination of cases because one is federal law and the other a state law. For example, if Windsor is decided as a 10th Amendment violation and struck down, Hollingsworth must be upheld under the same grounds. This will not be lost on the Justices. Neither will Justice Kennedy’s disclaimer on Lawrence be lost on Justice Kennedy.

Looking at Hollingsworth on merits, there are three basic possible outcomes of striking it down: depending upon the wording of the majority decision, striking down Proposition 8 could apply across the country, in effect invalidating constitutional provisions or statutes against gay marriage everywhere; the Justices could agree on the 10th Amendment argument, upholding Proposition 8 in California while legitimizing same-sex marriage in the nine states and DC that have legislated so (and all that shall in the future); or, the Court could follow the Kennedy disclaimer in Lawrence and apply the invalidation of Proposition 8 to California only.

Upholding Proposition 8 would leave gay Californians without the right to marry in the state and would tell the thirty-eight states that do not allow same-sex marriages that there is no constitutional problem in limiting marriage to a man and a woman. Such an outcome probably would trigger a political campaign in California to repeal Proposition 8 through another ballot measure and could give impetus to similar voter or legislative efforts in other states.

There is one other possibility – the Supreme Court could decide that those appealing the California high court overturning of Proposition 8 do not have standing to appeal – they have suffered no ill-effects by the California court’s actions. Given that, the US Supreme Court does not have a question before it, and would simply remand the case back to California, effectively upholding that court’s overturning of Proposition 8.

As to DOMA, if the Court upholds Section 3 – banning same-sex unions as a federal definition of marriage – it would leave in-place the state laws legitimizing same-sex marriages, but would deny federal benefits (Social Security survivors benefits, spousal insurance coverage, various estate provisions, federal income tax breaks, and so forth).

The effects of striking down of DOMA would also get into the weeds of why the Court did so. If it does so on the 14th Amendment’s equal protection clause – saying in effect that there is no substantive difference between straight and gay couples – that would strike a blow to the thirty-eight states that have ruled otherwise, and undoubtedly set in motion suits to nullify those provisions. If the Court decides Windsor as a 14th Amendment issue, it would nullify the thirty-eight state prohibitions against same-sex marriage, opening the way for legislative relief to those couples for state-recognized marriage. If it decides Windsor on 10th Amendment grounds, it would leave in-place the nine state and District of Columbia statutes allowing same-sex marriage as well as the thirty-eight state statutes prohibiting it. I call this the “Kennedy Ruling,” and assign it the highest probability of the eventual outcome.

The ruling will come down in June.



The US Senate stood eye-to-eye with tradition and tradition blinked. They actually passed a budget for the first time since 2009. Of course it contains a trillion in new taxes and no cuts, but, hey … it’s a budget. We need to be easy on them, Senate Democrats aren’t used to following the law on this. Debbie Wasserperson-Schultz isn’t worried about defense cuts, airport control tower closings or White House tour cancellations … she’s worried that House staffers will have to pay $10 for lunch in the House cafeteria. Just after ObamaCare passed, nearly half of doctors polled across the country said they would probably take early retirement rather than subject themselves to increasingly nationalized medicine. That’s now up to 60% of doctors polled across the country, and most predict even more as the last parts of ObamaCare kicks-in next year. Iraq is devolving back into secular warfare as the Taliban mark the days off their calendars, waiting for Americans to bug-out. Each month is still seeing more people quitting the labor force in disgust than those finding jobs. After a yawner of a trip to Israel, even the administration-friendly New York Times’ Thomas Friedman referred to Obama as the first sitting US President to visit Israel as a tourist. Remember the federally-run state exchanges that were going to be so easy to use – to get insurance if other routes were unavailable? Well, Henry Chao, who heads the effort to bring forth that software is beginning to panic. “The time for choosing screen color and fonts, to make the sites user-friendly, are over – we’re just hoping it isn’t a Third World experience.” He’s hoping, in other words, that the wonder of ObamaCare is better than Zimbabwe’s for those who it was designed to help. But enough about the state of the union.

Even after eight years of abysmal political leadership – and I use that phrase very loosely, I will be optimistic about America. Because Americans can overcome it. The world now wakes up to iPhone communication, Amazon online buying, social networking on Facebook, Google internet searches, and writing and computing with Microsoft software. Why weren’t these innovations first developed in Japan, PRC or Germany – all wealthy industrial countries with large, well-educated and hard-working populations? Because in such nations, young oddballs like Jeff Bezos, Bill Gates or Steve Jobs more likely would have needed the proper parentage, age, family connections or government-insider sanction to be given a fair shake[1].

America is the land that attracts other nations’ young oddballs because here, it is the idea that, in the end, rules – not the innovator’s age, gender, connections, religion, creed or race. We remain the most meritocratic society in history, singular in our devotion to innovation and pragmatism. We will overcome this infatuation with Europeanism because, much to the disgust of the left in this country, American Exceptionalism is very real – and shared opportunity is stronger than the tired ideology of “shared sacrifice.”

[1] See Victor Davis Hanson, America’s big fat advantage, Hoover Institution [Stanford University], March 21 2013.

Thought for the Day 2

Every time there is a “crisis” in Washington (a dusting of snow, most recently), the White House announces that “non-essential employees” needn’t show up for work. I say, on the next such occasion, take attendance and pink-slip those not answering “Here.” We obviously don’t need “non-essential” government.