I’m still working my way through the Prop 8 decision, but legal eagles who have read it are invited to help me out. Forget the gay-marriage stuff for a second and focus on the process. Am I right in understanding that the Court’s now essentially held that if the people of a state pass a popular referendum on whatever subject and then that referendum is challenged and struck down at the trial-court level, they have no right to appeal? They get one bite at the apple and then, if the executive decides he doesn’t like the referendum enough to choose to appeal it himself, there’s nothing a single member of the public can do to ask an appellate court to reconsider the lower court’s decision — even though many millions of voters voted directly to enact the law? That seems … odd.
In the DOMA case, a committee of the House of Representatives was allowed to intervene and appeal a lower-court ruling against a statute enacted by Congress when Obama’s DOJ refused to. Why, then, would the people be forbidden on standing grounds from intervening and appealing a statute that they passed themselves? Imagine that voters in Michigan pass a gun-control referendum, it gets struck down on Second Amendment grounds in the trial court, and then the Republican governor refuses to appeal. There’s nothing the people of Michigan can do except wait for the next election to vote him out? In that case, I don’t know why a state would hold referendums in the first place. Leave all bill-passing to the legislature and, if the governor refuses to appeal an adverse ruling on constitutionality, dump him when he’s up for reelection and/or get the legislature to intervene in court to appeal instead. Or, let popular referendums be held and also let the people defend them on appeal if the executive won’t. Why should the executive’s will trump the public’s will on laws passed directly by the public? Who’s really in charge in that conception of government?
Another question for legal eagles, since we’re on the subject. I realize the Court didn’t reach the question of whether state laws banning gay marriage violate equal protection, but float me a theory by which they don’t violate equal protection given this language in the DOMA holding:
DOMA’s principal effect is to identify a subset of state sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA 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. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
Tweak that paragraph just slightly and you have the argument for why states shouldn’t be permitted under the Fourteenth Amendment to ban gay marriage in the first place. The only wiggle room is in the suggestion that there might be no right to equal protection for married gay couples unless/until the state first grants them the right to marry by statute, but that’s hard to reconcile with precedent. The Court’s famous decision in Loving v. Virginia already held that marriage is a fundamental right for purposes of due process. The state doesn’t need to affirmatively grant it to you; you already hold it by virtue of being an American citizen. The question is whether the concept of marriage is intrinsically limited to heterosexuals only, but just look at the paragraph above. Pretty clearly five justices of the Court think it isn’t. So what’s left of state bans on gay marriage? As much as I agree with Philip Klein’s take on today’s rulings here, I think today’s paradigm of letting the states decide the issue is fleeting.
And apropos of nothing, I think Gabe Malor is right about the next big battle here. Legalized gay marriage is a fait accompli; the new frontier is whether business owners, i.e. public accommodations, will be required under discrimination statutes to transact with gays even if they have a religious objection. It’s coming.