DOMA's Unconstitutional But Gay-Marriage Isn't Secure Yet

The Supreme Court just handed down their decision on the Defense of Marriage Act in The United States v. Windsor : by 5-4 DOMA is unconstitutional.

Here's the slip opinion (aka, the draft of the final bench decision): 12-307 United States v. Windsor All quotes below come from this.


"The Constitution’s guarantee of equality must, at the very least, mean that a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group." 

As if we need another reason to fire all of Congress and start over ...


"... Regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” 

Even though my home states are among the bigoted who needed correction, the trend of bulldozing over State rights in both the Executive and Legislative branches over the last eight years is shameful. It's pure power-grab. Congress cannot manage the power they do have, but they'll make state issues federal issues because their financial contributors want more bang for their buck.

"DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State."

Discrimination at its very core...

"It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect."

Again State versus Federal; wherein, the Feds are deliberately creating an adversarial law they cannot enforce except through denying funds to public agencies who depend on them. Meanwhile they've empowered subversive private and corporate entities to tie up the States judicial systems through conflicting laws. If the Supreme Court hadn't put the kibosh on DOMA now, the case would be back again...and again ... and again.


"The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws... While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved."

Violating not one but two constitutional amendments really doesn't bode well for your case. 


Four justices voted against this decision. Their issues, as laid out in the dissenting opinions, had nothing to do with whether same-sex can marry. Justice Roberts was concerned that the scope of the case and the Supreme Court's decision was not enough to unilaterally uphold same-sex marriage. He sees the loopholes in the individual State's authority to define marriage and anticipates the return of the underlying issue to the legal system.

"[T]he federal decision undermined (in the majority’s view) the dignity already conferred by the States
in the exercise of their sovereign power; whereas a State’s decision whether to expand the definition of marriage from its traditional contours involves no similar concern. We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples. That issue, however, is not before us in this case, and we hold today that we lack jurisdiction to consider it."


Justice Scalia dissented on the basis that the case should never have reached the Supreme Court because the lower court had gotten it right the first time.

"Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?"

Scalia contends that the only reason he and his peers endured this case was for the purpose of a power-struggle with Congress. Fair enough.

While the demise of DOMA is certainly to be celebrated, the States seem to retain the power to ban same-sex marriage. From the sounds of the dissenting Justices, the war is not yet won.