This is not what the first entry on this blog was supposed to be about. It is not my intention to make this a political blog. The day I started this blog (when I was sick) I also got about 80% through my intended first post, which was about my love for Apple products and a feature request list for that company. (complete with illustrations!) However, when the Supreme Court rulings about gay marriage were released, I found I had something to say.
My biggest issue was not the results, which were mostly what was expected. The thing that really drove me crazy was the lack of understanding that most people had about what happened. Frankly, the news media's explanation of the rulings this week was terrible, and it didn't explain why the supreme court ruled the way it did, or even what they really ruled. I was really interested in what the supreme court rulings actually meant, and I found the news media's explanation completely insufficient. There are several critical issues in these cases that had nothing to do with gay marriage at all, and they received almost no attention.
We tend to have a pessimistic view of our government and our elected officials, and sometimes roll our eyes when politics are discussed. But who really runs our government? We do! If we fail to understand what is going on in an informed way, how can we expected to run our country? Can you imagine what would happen if Tim Cook walked into Apple every morning with only a vague clue of how things happened? (If you are not as much of a nerd as I am, please feel free to substitute your favorite sports team and coach in the previous sentence)
So, for anyone who might be interested, I want to provide an explanation of what happened this week, based on the reading I did out of my own curiosity. Before we get started, I need to make a few things clear. I am not a legal expert. I am a citizen who has an interest in politics. Many people understand this topic much better than I do. I invite those people to point out mistakes that I make.
I am a conservative, though I think there is a lack of understanding among conservatives and liberals about what happened this week. This entry is more about background than about my opinion.
There was not one, but two cases related to gay marriage decided this week. Both were argued on the same day back in March, however, each court case is separate and centers around different aspects of the law. The first, United States v. Windsor, was a legal challenge to the Defense of Marriage Act. (more commonly known as DOMA) The other, Hollingsworth v. Perry, was the conclusion of several years of legal fighting over California's proposition 8.
Before we discuss this case, we need to review what DOMA does. The Defense of Marriage act is a federal law and doesn't ban gay marriage. Instead, DOMA limits gay marriage in two ways. First, DOMA gives states the right to define marriage independent of other state's decisions. For example, say a same gender couple is married in the state of New York, which allows same sex marriage. If this couple moves to North Carolina, (which does not allow same gender marriage) North Carolina is not required to recognize that marriage. This is section 2 of DOMA.
DOMA also limits the definition of marriage to one man and one women for purposes of federal law. So say that same married couple remains in New York instead of moving to North Carolina. They will receive marriage benefits from the state, (such as filing jointly on state taxes) however they are not married for purposes of federal law. Examples of benefits from federal law not extended to same
gender marriages include federal income tax (couple cannot file jointly), social security benefits, hospital visitation rights, next of kin notification in the military, and so on. This is in section three of DOMA.
So it's important to recognize that in United States v. Windsor, because the legal challenge of the case is against DOMA, the right to marry someone of the same gender is not the issue at hand. The issue in this case is the rights of those who have already married in states that allow it.
With that background, let's talk about this case. Edith Windsor was married to Thea Spyer several years ago in Ontario Canada. They lived in the state of New York, which recognized their Canadian same-gender marriage. Thea Spyer passed away in 2009 and left her entire estate to Windsor. Windsor wanted to claim an exemption to the federal estate tax for surviving spouses, since this would lower her estate tax bill. She was denied because federal law did not recognize her marriage. She ended up paying about $363,000 in estate taxes. After seeking a refund, she eventually sued the United States government for the amount of her estate tax.
For brevity, we will skip the majority of the history of this case through the court system and move to this supreme court case.
The legal team for Edith Windsor argued that section 3 of DOMA violated the 5th amendment to the constitution, which reads:
So the primary legal argument against DOMA in this case is something like this: Ms. Windsor was married legally according to the laws of her state, but was denied a benefit that is extended to other marriages in the same state and in the same situation. This violates the principle of "due process" because in the state of New York, there are two couples, married legally, who are treated differently by the law.
This week the supreme court ruled in favor of Edith Windsor. However, the scope of the ruling is much narrower than most people realize. This ruling does not strike down DOMA in its entirety. Rather, it allows those people who are married (or could be married in their states) federal benefits.
In other words section 3, and only section 3, of DOMA was struck down. Section 3 defined marriage as between a man and a women for the purposes of federal law. This case had no effect on who could and could not be married. It only changed the benefits of those that were.
Section two of DOMA - which allows states to define marriage, has not changed. So remember our same gender couple from New York? Should they chose to move to North Carolina, NC is still under no obligation to honor their marriage, but federal law now does.
One of the most interesting aspects of this case has to do with something called standing. "Standing" in this case refers to a person or group's ability to defend a law in court.
Traditionally, when a law passed by congress is challenged in the supreme court, (or any federal court) it is the role of the department of justice, under the direction of the current president, to defend the law in court. If you see laws in the context that Americans (through representation) create laws, it follows that whoever defends their laws must be certified to represent the American people. This description naturally leans towards an elected figure of some sort, since he has already been selected to represent the group of people in question. So it makes sense to have the president defend federal laws. There are several reasons why it wouldn't make sense for any random person to be allowed to defend a law before the court, not the least of which is that a random person may not really have representing the American people's interests at heart.
However in this case, President Obama said that he believed the law was unconstitutional and announced that he would refuse to defend it.
This has some disturbing constitutional implications. Think this through for a moment. When he was sworn into office, President Obama swore that he would "preserve, protect, and defend the constitution of the United States." During his administration, he runs the federal government which enforces a law by congress. After enforcing this law for several years, says he believes this law is not in harmony with
the constitution. Even after making this declaration, he waits for the court's decision and continues to enforce the law. You could make a legitimate case for impeachment; this has huge implications for the separation of powers within the federal government.
Don't misunderstand. I'm not "bashing" on Obama. I don't think he should be impeached. He was "between a rock and a hard place." He could either defend the law that he believed was wrong (effectively going back on his word to those who elected him, since he campaigned against the law), he could chose to ignore an act of congress on the basis that it was unconstitutional, (and that definitely would not have served the separation of powers) or he could do what he did. If the situation was reversed and it was a conservative president and a liberal law before the court, I'm not sure what the right thing would be to do. All I am saying is that this action did have (and will have) a significant impact on the separation of powers.
However, this was not the end of the constitutional questions raised by this case. Socially conservative law makers were less then pleased when the president announced he would not defend DOMA. So House Speaker John Boehner convened BLAG, or the Bipartisan Legal Advisory Group, to support the law in court. The history of the BLAG is not important, suffice it to say that BLAG is a group of lawyers that assists the House of Representatives, and defending laws in court is far from its traditional role.
The Supreme Court, by ruling on this case, accepted the standing of the Bipartisan Legal Advisory group to defend DOMA. In other words, they allowed House of Representatives to step in and represent a law that they had passed in court. This is not typical and has huge implications. This sets a precedent that allows a part of congress to represent itself in another branch of the federal government.
This raises a plethora of new questions, many of which were discussed, but not decided, when the case was argued. Could the senate represent itself in court? Could the senate and the house be on opposite sides of the same legal case? Does this give the supreme court authority to resolve balance of power questions? Suppose the president hasn't declined to defend a law, but the House isn't happy with the approach the president has taken in defending it, can they step in then? This is another huge issue in this case with large implications. It should have received more attention in our national conversation than it has.
The Hollingsworth v. Perry case does involve the right to marry, unlike United States v. Windsor. Before we delve into the results of this case, we need a little review of what proposition 8 is and why it came about.
In 2008, the case referred to as "In re Marriage Cases" came before the California Supreme Court. This is not the United States Supreme Court, this was the California Supreme Court. Skipping the details of the case, the court ruled that allowing heterosexual couples the right to marry while denying that privilege homosexual couples violated the California constitution.
It is my understanding that the only way to overcome the ruling of a high court that something is not constitutional is to amend the appropriate constitution. For social conservatives in California, that meant the California constitution had to be amended. The California constitution allows voters to put a state constitutional amendment on the ballot, without working through their representatives, if voters can acquire enough signatures to qualify. (The standard for qualification is 8% of voters, where the number of voters is determined by the most recent gubernatorial election for the state.) Socially conservative Californians developed "Proposition 8," which was titled "Eliminates the Rights of Same-Sex Couples to Marry," and received enough signatures to place the issue on the ballot.
The campaigning leading up to the November 2008 election was bitter, and people are still arguing over accusations of wrongdoing. We'll skip this, and jump to election day. The initiative was passed 52.2% to 48.7%. Shortly thereafter, the several lawsuits were brought to the California Supreme Court, which ultimately upheld the constitutionality of proposition 8.
It may seem confusing that the California Supreme court seemed to rule one way before proposition 8, and then voted a different way afterward. Remember, when justices answer questions of constitutionality, they do not vote based on what they think is right. The job of determining right and wrong falls squarely on us - the people. The justices vote based on what they believe the law says. So when the California Supreme Court ruled that denying same sex marriage was unconstitutional, they were interpreting what they thought the law said, or at least implied. However, proposition 8 changed the state constitution so that there was no need to read between the lines - it explicitly stated that gay marriage was not permitted. The CA supreme court was bound by the law, and they ruled based on what the law said.
Legal challenges to Proposition 8 followed. Eventually, the case was sent to a federal judge. As a federal judge, he was bound by the United States constitution, not the California constitution. This judge ruled proposition 8 unconstitutional.
Just like federal law is generally defended by the executive of the federal government, someone certified to represent the people of California had to step up to defend their new law. At the time, it
was the governor of California, Arnold Schwarzenegger. However, shortly after proposition 8 was ruled unconstitutional, Arnold Schwarzenegger's term ended, and the new governor announced that he would not support the law. From then on, various groups attempted to support the new proposition, but no one who was really certified to represent the people of California.
This is the critical point, and it is extremely similar to the issue of the DOMA case. The primary issue is one of standing. However, unlike the Windsor case, no elected official came forward to represent the law. Eventually a group of private citizens, lead by a man called Dennis Hollingsworth, came forward to represent the law, and it continued to work its way through the court system.
The fundamental issue here is that a random citizen, albeit a very concerned one, typically does not have legal standing to represent a law in court. There are good reasons for this. If there were not standards to have standing in court, imagine how many significant political questions would be "resolved" by the judiciary, and not the voice of the people. Even with our current system, litigious organizations like the NAACP and the ACLU actively search for citizens who might qualify to sue for damages against laws they oppose, so they can sue on behalf of these individuals. If organizations and individuals were able to bring to the judicial system a case against any law they didn't like, or defend any law they wanted to support, the judicial system would be overwhelmed and it would diminish the democratic nature of our government. It would be chaos.
You probably see what this means for the case we're discussing. The Supreme Court ruled that Dennis Hollingsworth and his organization, "protectmarriage.com" did not have adequate standing to represent proposition 8.
So what happens now? The case now defaults to the most recent decision where someone who had standing was still representing the law. In this case the supreme court ruled that the ruling by a federal judge that proposition 8 was unconstitutional, which we discussed earlier, was the most recent valid decision. It was the last decision made while the governor's office was still defending the law.
It's important to understand what this ruling did not do. If you hear any person (or any idiotic news media company) say the following in the context of this case, they are either horribly misinformed or lying.
Hollingsworth v. Perry
 |
| The Supreme Court Building (Source: Wikimedia) |
My biggest issue was not the results, which were mostly what was expected. The thing that really drove me crazy was the lack of understanding that most people had about what happened. Frankly, the news media's explanation of the rulings this week was terrible, and it didn't explain why the supreme court ruled the way it did, or even what they really ruled. I was really interested in what the supreme court rulings actually meant, and I found the news media's explanation completely insufficient. There are several critical issues in these cases that had nothing to do with gay marriage at all, and they received almost no attention.
We tend to have a pessimistic view of our government and our elected officials, and sometimes roll our eyes when politics are discussed. But who really runs our government? We do! If we fail to understand what is going on in an informed way, how can we expected to run our country? Can you imagine what would happen if Tim Cook walked into Apple every morning with only a vague clue of how things happened? (If you are not as much of a nerd as I am, please feel free to substitute your favorite sports team and coach in the previous sentence)
So, for anyone who might be interested, I want to provide an explanation of what happened this week, based on the reading I did out of my own curiosity. Before we get started, I need to make a few things clear. I am not a legal expert. I am a citizen who has an interest in politics. Many people understand this topic much better than I do. I invite those people to point out mistakes that I make.
I am a conservative, though I think there is a lack of understanding among conservatives and liberals about what happened this week. This entry is more about background than about my opinion.
There was not one, but two cases related to gay marriage decided this week. Both were argued on the same day back in March, however, each court case is separate and centers around different aspects of the law. The first, United States v. Windsor, was a legal challenge to the Defense of Marriage Act. (more commonly known as DOMA) The other, Hollingsworth v. Perry, was the conclusion of several years of legal fighting over California's proposition 8.
United States v. Windsor
DOMA also limits the definition of marriage to one man and one women for purposes of federal law. So say that same married couple remains in New York instead of moving to North Carolina. They will receive marriage benefits from the state, (such as filing jointly on state taxes) however they are not married for purposes of federal law. Examples of benefits from federal law not extended to same
 |
| States That Allow Gay Marriage (Source: Huffington Post) |
So it's important to recognize that in United States v. Windsor, because the legal challenge of the case is against DOMA, the right to marry someone of the same gender is not the issue at hand. The issue in this case is the rights of those who have already married in states that allow it.
With that background, let's talk about this case. Edith Windsor was married to Thea Spyer several years ago in Ontario Canada. They lived in the state of New York, which recognized their Canadian same-gender marriage. Thea Spyer passed away in 2009 and left her entire estate to Windsor. Windsor wanted to claim an exemption to the federal estate tax for surviving spouses, since this would lower her estate tax bill. She was denied because federal law did not recognize her marriage. She ended up paying about $363,000 in estate taxes. After seeking a refund, she eventually sued the United States government for the amount of her estate tax.
For brevity, we will skip the majority of the history of this case through the court system and move to this supreme court case.
The legal team for Edith Windsor argued that section 3 of DOMA violated the 5th amendment to the constitution, which reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.This amendment, particularly the phrase "due process of law" is understood to mean that all people have a right to "equal protection" under the law. (Which was a phrase later used in another constitutional amendment)
 |
| The interior of the Supreme Court Building (Source: Wikimedia) |
So the primary legal argument against DOMA in this case is something like this: Ms. Windsor was married legally according to the laws of her state, but was denied a benefit that is extended to other marriages in the same state and in the same situation. This violates the principle of "due process" because in the state of New York, there are two couples, married legally, who are treated differently by the law.
This week the supreme court ruled in favor of Edith Windsor. However, the scope of the ruling is much narrower than most people realize. This ruling does not strike down DOMA in its entirety. Rather, it allows those people who are married (or could be married in their states) federal benefits.
In other words section 3, and only section 3, of DOMA was struck down. Section 3 defined marriage as between a man and a women for the purposes of federal law. This case had no effect on who could and could not be married. It only changed the benefits of those that were.
Section two of DOMA - which allows states to define marriage, has not changed. So remember our same gender couple from New York? Should they chose to move to North Carolina, NC is still under no obligation to honor their marriage, but federal law now does.
One of the most interesting aspects of this case has to do with something called standing. "Standing" in this case refers to a person or group's ability to defend a law in court.
Traditionally, when a law passed by congress is challenged in the supreme court, (or any federal court) it is the role of the department of justice, under the direction of the current president, to defend the law in court. If you see laws in the context that Americans (through representation) create laws, it follows that whoever defends their laws must be certified to represent the American people. This description naturally leans towards an elected figure of some sort, since he has already been selected to represent the group of people in question. So it makes sense to have the president defend federal laws. There are several reasons why it wouldn't make sense for any random person to be allowed to defend a law before the court, not the least of which is that a random person may not really have representing the American people's interests at heart.
However in this case, President Obama said that he believed the law was unconstitutional and announced that he would refuse to defend it.
This has some disturbing constitutional implications. Think this through for a moment. When he was sworn into office, President Obama swore that he would "preserve, protect, and defend the constitution of the United States." During his administration, he runs the federal government which enforces a law by congress. After enforcing this law for several years, says he believes this law is not in harmony with
 |
| President Obama Taking the Oath of Office (Source: Joint Congressional Committee on Inaugural Ceremonies) |
Don't misunderstand. I'm not "bashing" on Obama. I don't think he should be impeached. He was "between a rock and a hard place." He could either defend the law that he believed was wrong (effectively going back on his word to those who elected him, since he campaigned against the law), he could chose to ignore an act of congress on the basis that it was unconstitutional, (and that definitely would not have served the separation of powers) or he could do what he did. If the situation was reversed and it was a conservative president and a liberal law before the court, I'm not sure what the right thing would be to do. All I am saying is that this action did have (and will have) a significant impact on the separation of powers.
However, this was not the end of the constitutional questions raised by this case. Socially conservative law makers were less then pleased when the president announced he would not defend DOMA. So House Speaker John Boehner convened BLAG, or the Bipartisan Legal Advisory Group, to support the law in court. The history of the BLAG is not important, suffice it to say that BLAG is a group of lawyers that assists the House of Representatives, and defending laws in court is far from its traditional role.
The Supreme Court, by ruling on this case, accepted the standing of the Bipartisan Legal Advisory group to defend DOMA. In other words, they allowed House of Representatives to step in and represent a law that they had passed in court. This is not typical and has huge implications. This sets a precedent that allows a part of congress to represent itself in another branch of the federal government.
 |
| The House of Representatives passing rules that allowed it to continue to use BLAG to defend DOMA. (Source:C-SPAN) |
This raises a plethora of new questions, many of which were discussed, but not decided, when the case was argued. Could the senate represent itself in court? Could the senate and the house be on opposite sides of the same legal case? Does this give the supreme court authority to resolve balance of power questions? Suppose the president hasn't declined to defend a law, but the House isn't happy with the approach the president has taken in defending it, can they step in then? This is another huge issue in this case with large implications. It should have received more attention in our national conversation than it has.
Hollingsworth v. Perry
In 2008, the case referred to as "In re Marriage Cases" came before the California Supreme Court. This is not the United States Supreme Court, this was the California Supreme Court. Skipping the details of the case, the court ruled that allowing heterosexual couples the right to marry while denying that privilege homosexual couples violated the California constitution.
It is my understanding that the only way to overcome the ruling of a high court that something is not constitutional is to amend the appropriate constitution. For social conservatives in California, that meant the California constitution had to be amended. The California constitution allows voters to put a state constitutional amendment on the ballot, without working through their representatives, if voters can acquire enough signatures to qualify. (The standard for qualification is 8% of voters, where the number of voters is determined by the most recent gubernatorial election for the state.) Socially conservative Californians developed "Proposition 8," which was titled "Eliminates the Rights of Same-Sex Couples to Marry," and received enough signatures to place the issue on the ballot.
 |
| A protest leading up to the vote on ballot proposition 8 in California (Source: Wikimedia) |
The campaigning leading up to the November 2008 election was bitter, and people are still arguing over accusations of wrongdoing. We'll skip this, and jump to election day. The initiative was passed 52.2% to 48.7%. Shortly thereafter, the several lawsuits were brought to the California Supreme Court, which ultimately upheld the constitutionality of proposition 8.
It may seem confusing that the California Supreme court seemed to rule one way before proposition 8, and then voted a different way afterward. Remember, when justices answer questions of constitutionality, they do not vote based on what they think is right. The job of determining right and wrong falls squarely on us - the people. The justices vote based on what they believe the law says. So when the California Supreme Court ruled that denying same sex marriage was unconstitutional, they were interpreting what they thought the law said, or at least implied. However, proposition 8 changed the state constitution so that there was no need to read between the lines - it explicitly stated that gay marriage was not permitted. The CA supreme court was bound by the law, and they ruled based on what the law said.
Legal challenges to Proposition 8 followed. Eventually, the case was sent to a federal judge. As a federal judge, he was bound by the United States constitution, not the California constitution. This judge ruled proposition 8 unconstitutional.
Just like federal law is generally defended by the executive of the federal government, someone certified to represent the people of California had to step up to defend their new law. At the time, it
 |
| The voting breakup by county of proposition 8. The measure passed 52 - 48. |
This is the critical point, and it is extremely similar to the issue of the DOMA case. The primary issue is one of standing. However, unlike the Windsor case, no elected official came forward to represent the law. Eventually a group of private citizens, lead by a man called Dennis Hollingsworth, came forward to represent the law, and it continued to work its way through the court system.
The fundamental issue here is that a random citizen, albeit a very concerned one, typically does not have legal standing to represent a law in court. There are good reasons for this. If there were not standards to have standing in court, imagine how many significant political questions would be "resolved" by the judiciary, and not the voice of the people. Even with our current system, litigious organizations like the NAACP and the ACLU actively search for citizens who might qualify to sue for damages against laws they oppose, so they can sue on behalf of these individuals. If organizations and individuals were able to bring to the judicial system a case against any law they didn't like, or defend any law they wanted to support, the judicial system would be overwhelmed and it would diminish the democratic nature of our government. It would be chaos.
You probably see what this means for the case we're discussing. The Supreme Court ruled that Dennis Hollingsworth and his organization, "protectmarriage.com" did not have adequate standing to represent proposition 8.
So what happens now? The case now defaults to the most recent decision where someone who had standing was still representing the law. In this case the supreme court ruled that the ruling by a federal judge that proposition 8 was unconstitutional, which we discussed earlier, was the most recent valid decision. It was the last decision made while the governor's office was still defending the law.
It's important to understand what this ruling did not do. If you hear any person (or any idiotic news media company) say the following in the context of this case, they are either horribly misinformed or lying.
- "The supreme court ruled that gay marriage was constitutional."
- "The supreme court ruled that a ban on gay marriage is unconstitutional."
- "The supreme court ruled that proposition 8 was unconstitutional."
- "The supreme court ruled in favor of gay marriage." (True of the Perry case, not true of this one)
- "The supreme court overturned the decision of California voters." (The supreme court did not make the decision, a federal judge did. The supreme court only ruled that that judge's decision was most recent valid decision on the case)
By ruling the way it did, the supreme court ignored the question of constitutionality altogether - they never answered it. That bears repeating, because it seems like nobody gets this and it is important. By ruling the way it did, the Supreme Court never answered the question "Was Proposition 8 constitutional?"
Social conservatives often lament "well, the effect is the same anyway." That statement is totally inaccurate. Had the supreme court ruled against proposition 8, this would have made all bans on gay marriage illegal - not just in California.
The other major difference between ruling against proposition 8 and this type ruling is that a similar case could return to the supreme court, since the constitutional question is still open. (assuming the new case had proper standing) While this is technically always true, as a practice the supreme court almost always rejects cases that are similar to an issue that was ruled on recently. Since the constitutional question was never answered, it seems probable that the supreme court would welcome an opportunity to rule on the issue. This is especially true since there is now an inconsistent constitutional standard on this issue. (Meaning that it has been ruled unconstitutional in one state to ban gay marriage, but not in other states) Historically, the Supreme Court has always sought to rectify such situations quickly.
Another potentially confusing aspect of this ruling is to wonder why BLAG was considered to have standing, but "protectmarriage.com" didn't. The complete answer is beyond my comprehension, as I don't have a law degree, but there are a few things we can say. First, BLAG represented a body of elected officials that, as a whole, represented the United States. Although the legal ground was still shakier (the House did not act unanimously, and a President can't be "non-unanimous" with himself) that gives them a lot more authority to represent America than Dennis Hollingsworth had to represent the people of California. Dennis Hollingsworth was a state elected official, but one who only represented a small part of the state.
Second, the house had a more significant claim to damages as a result of the case. "ProtectMarriage.com" really didn't have any way to show that they were being "damaged" by the discontinuation of proposition 8. On the other hand, the House of Representatives could claim that their role as defined by the constitution was at risk when their laws were ruled unconstitutional. They could say that their legal rights as a body were diminished when the President could strike down any of their laws by refusing to defend it in court.
So that's a brief explanation of what happened this week. Although this was much longer than I expected it would be, I want to share with you a few of my own thoughts. This is not meant to be comprehensive, these are just a few thoughts.
I believe gay marriage is wrong. I have no good political, logical, or scientific justification for this belief. It is rooted firmly in my belief in God, the scriptures, and modern day prophets. I do not apologize for this. I do not believe we are on the right course when we automatically reject religious moral voices from the public square. Even the founding documents of this county were indisputably based on Christian principles. In this country we treat this issue as though the moral determination on homosexuality has already been made, even though there are still many Americans who don't agree. If religious people suffer from moral superiority as we have been accused, those who support gay marriage suffer from it just as badly, if not worse.
If for some reason I had all who supported gay marriage as a captive audience for a short time, I would narrow down what I wanted to say to two main points:
1. It is incorrect to assume I hate you because we disagree on this issue.
It is a politically good but morally poor choice to portray those who oppose gay marriage as hateful, bigoted, and uninformed. That portrayal is not rooted in truth for the majority of us, and many of you already know that, but continue regardless. The depiction we receive in the news media bothers me to no end. Only the crazy, extremist, and uncharitable are used to portray us. As a member of the church Jesus Christ of Latter-day Saints, there are many things that are common practice in this country (drinking, sexual intimacy before marriage for any sexual orientation, ect.) that I believe are not right. I hope that no one who participates in any of these activities has ever felt that I have judged them or that I hate them. I do not hate those who support gay marriage, please don't assume that.
2. This issue should remain in the hands of the people.
I realize that this is unacceptable to many who support gay marriage. This movement loves to compare itself to the political struggle of race issues in US history. Without going into details, I do not think that comparison is accurate. Please don't allow the judiciary to decide this issue for everyone. Allow the people to decide. Paul Clement, who argued for the BLAG in United States v. Windsor closed his argument with this insightful comment: (emphasis added; note that "animus" in this context is "with intent to harm another")
Social conservatives often lament "well, the effect is the same anyway." That statement is totally inaccurate. Had the supreme court ruled against proposition 8, this would have made all bans on gay marriage illegal - not just in California.
The other major difference between ruling against proposition 8 and this type ruling is that a similar case could return to the supreme court, since the constitutional question is still open. (assuming the new case had proper standing) While this is technically always true, as a practice the supreme court almost always rejects cases that are similar to an issue that was ruled on recently. Since the constitutional question was never answered, it seems probable that the supreme court would welcome an opportunity to rule on the issue. This is especially true since there is now an inconsistent constitutional standard on this issue. (Meaning that it has been ruled unconstitutional in one state to ban gay marriage, but not in other states) Historically, the Supreme Court has always sought to rectify such situations quickly.
 |
| The current sitting supreme court (Source: supremecourt.gov) |
Another potentially confusing aspect of this ruling is to wonder why BLAG was considered to have standing, but "protectmarriage.com" didn't. The complete answer is beyond my comprehension, as I don't have a law degree, but there are a few things we can say. First, BLAG represented a body of elected officials that, as a whole, represented the United States. Although the legal ground was still shakier (the House did not act unanimously, and a President can't be "non-unanimous" with himself) that gives them a lot more authority to represent America than Dennis Hollingsworth had to represent the people of California. Dennis Hollingsworth was a state elected official, but one who only represented a small part of the state.
Second, the house had a more significant claim to damages as a result of the case. "ProtectMarriage.com" really didn't have any way to show that they were being "damaged" by the discontinuation of proposition 8. On the other hand, the House of Representatives could claim that their role as defined by the constitution was at risk when their laws were ruled unconstitutional. They could say that their legal rights as a body were diminished when the President could strike down any of their laws by refusing to defend it in court.
My Opinion
 |
| The Salt Lake City Temple, located adjacent to the headquarters of the Church of Jesus Christ of Latter-day Saints. (Source:lds.org) |
If for some reason I had all who supported gay marriage as a captive audience for a short time, I would narrow down what I wanted to say to two main points:
1. It is incorrect to assume I hate you because we disagree on this issue.
It is a politically good but morally poor choice to portray those who oppose gay marriage as hateful, bigoted, and uninformed. That portrayal is not rooted in truth for the majority of us, and many of you already know that, but continue regardless. The depiction we receive in the news media bothers me to no end. Only the crazy, extremist, and uncharitable are used to portray us. As a member of the church Jesus Christ of Latter-day Saints, there are many things that are common practice in this country (drinking, sexual intimacy before marriage for any sexual orientation, ect.) that I believe are not right. I hope that no one who participates in any of these activities has ever felt that I have judged them or that I hate them. I do not hate those who support gay marriage, please don't assume that.
2. This issue should remain in the hands of the people.
I realize that this is unacceptable to many who support gay marriage. This movement loves to compare itself to the political struggle of race issues in US history. Without going into details, I do not think that comparison is accurate. Please don't allow the judiciary to decide this issue for everyone. Allow the people to decide. Paul Clement, who argued for the BLAG in United States v. Windsor closed his argument with this insightful comment: (emphasis added; note that "animus" in this context is "with intent to harm another")
The last point I would simply make is in thinking about animus, think about the fact that Congress asked the Justice Department three times about the constitutionality of the statute. ... Now the Solicitor General wants to say, well, it was want of careful reflection. Well, where do we get careful reflection in our system? Generally, careful reflection comes in the democratic process. The democratic process requires people to persuade people. That's what the democratic process requires. You have to persuade somebody you're right. You don't label them a bigot. You don't label them as motivated by animus. You persuade them you are right. That's going on across the country. Allow the democratic process to continue.
Additional Resources
Hollingsworth v. Perry
United States v. Windsor
General
Comments
Post a Comment