DOMA was struck down today, not a bad thing in itself. But the court cited all the wrong reasons for killing it. They should have killed it on 9th and 10th amendment grounds, and upheld Prop 8 on the same basis. Instead they cited the equal protection clause of the 14th amendment, which was never intended to apply to anything like this, in a ruling that is certain to be seen by lower courts as indicative of sympathy for gay marriage by the SCOTUS. Meanwhile Prop 8, which should never have seen the inside of a Federal Courthouse as it's a state's rights issue, has been effectively overturned on a technicality.
All in all it was a sad day for the rule of law.
A Correct Way to Correct
11 hours ago
4 comments:
Technical correction. DOMA was struck down on Fifth amendment grounds, not Fourteenth. The Fifth applies when the challenged action is a Federal gov't action, while the Fourteenth applies when it is a state gov't action being challenged. Otherwise, however, I agree with you that it is hard to believe that jurisprudence has evolved to such a point where this is what the Fifth amendment means.
Unless I'm mistaken, Prop 8 was referred back to the 9th circuit who upheld the ruling of the lower circuit judge who declared Prop 8 unconstitutional.
The decisions are schizophrenic. The justices thought to uphold states' rights when it came to DOMA (even though DOMA defined marriage for only FEDERAL purposes and was not, in my view, unconstitutional) but subverted the will of the people in an individual state to make changes to their constitution democratically via Prop 8.
The problem with DOMA is that Congress has no authority to define marriage at all. But yeah, this is a dreadful decision.
Call me an irritant Whig but these sorts of controversial social issues should really be decided in Congress or, like you said, in the state assemblies. Not by unaccountable judges.
I'm against the proposal for Australia to adopt a bill of rights for the same reason: it means more power to decide public policy to unaccountable judges, and less to elected representatives.
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