This week the Supreme Court made a couple positive rulings on same-sex marriage.  First, it declared the Defense of Marriage Act (DOMA) unconstitutional.  Then it said that the appellants did not have standing to challenge the Federal District Court’s ruling  that Proposition 8 was unconstitutional.

The Supreme Court was correct in striking down DOMA.  Just as a side note, Clinton  supported DOMA to ensure his reelection in 1996 but now supports same-sex marriage.  DOMA was a bigoted piece of legislation that served no purpose.  We can celebrate the end of its 17 year life.

What the Supreme Court did with the Proposition 8, however, is not completely just.  It has allowed Proposition 8 to remain voided, which is a good thing.  Denying standing to the appellants, who wanted to reinstate Proposition 8, also indicated that not allowing same-sex marriage unconstitutionally violated equal protection. If there is no standing that means the appellants were not harmed, and so there is no rational basis for this discrimination against gays and lesbians who want to marry.  Allowing standing might have indicated that there was harm to the appellants.

Giving the appellants standing, on the other hand, would have given the Supreme Court the opportunity to clearly state that not allowing same-sex marriage at either the federal or state level is unconstitutional.  Alabama would have had to allow gays and lesbians to marry in their state.   As it is now, the Supreme Court is allowing the states that do not recognize same-sex marriage to continue  not  to recognize it, even though it has provided strong indications that not allowing same-sex marriage is unconstitutional both by rejecting the appellants’ standing in Proposition 8 and by invalidating DOMA.

It would have been better to find a way to justify standing for the appellants so that the Court could later say that Proposition 8 was an unconstitutional equal protection violation.  The question is how you say that the appellants were harmed by allowing same-sex marriage, but yet there is no rational basis in banning same-sex marriage.  One possibility is for the Court to say that they saw harm to the appellants but after hearing the case it did not see how they were harmed.  That would have made the Court seem flip-floppy.  The Court, however, contradicted itself by originally saying the appellants had standing when it agreed to hear the case.  Maybe the Supreme Court should have justified the appellants’ standing in other ways.  It could say that Proposition 8 was geared to benefit heterosexuals, and when the District Court stuck down the law it could have harmed them.  The Supreme Court, therefore, needed to hear the case to determine if heterosexuals in California were harmed.  It was part of the justices’ duty to be impartial, and thereby grant the appellants standing to hear the case even if they thought the appellants were unlikely harmed.  When saying it “could harm the appellants” it does not mean it likely would harm them.  Once the Supreme Court justices had heard the arguments the Court could say that allowing gays and lesbians to marry did nothing to harm heterosexuals.  It could then invalidate state bans on gay and lesbian across the country, and say that in the future people did not have standing to challenge laws and court rulings allowing such marriages.

A more broad definition of standing would not open the floodgates to court litigation.  People outside of California would still not have been able to challenge Proposition 8 or appeal rulings against it.  If someone has not been arrested for demonstrating outside a public building they cannot claim the ban on demonstrating outside this building is unconstitutional in court.

Instead of directly addressing the issue of banning gay and lesbian marriage, the Supreme Court is succumbing to political forces.  They know that forcing every state to allow same-sex marriage is too big a pill for much of the country to swallow.  Courts, however, have a duty to follow the law, regardless of whether they are making the country swallow a big pill.  The Fourteenth Amendment Equal Protection clause clearly requires the states to recognize gay and lesbian marriage, just as the Fifth Amendment Due Process clause does.



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