Understanding the DOMA and Prop 8 Supreme Court rulings

by Mass Resistance

On Wednesday June 26th, 2013 the US Supreme Court gave the radical homosexual movement in America a big victory. 

Taken in the context of human history this was incomprehensible. Any other generation, looking at this, would think the Justices had lost their minds. First and foremost, it shows that the homosexual movement can now use the courts to accomplish many of their goals, no matter how outlandish and undemocratic. And down the road the same legal "logic" can almost surely be used to declare laws against polygamy and polyandry unconstitutional.

There is no question that the Court's rulings were largely political and true to the increasingly radical makeup of the Court. We are dealing with same majority of leftist judges who declared Obamacare to be a legal "tax." Adding to that is the general pro-gay climate in Washington, and intense lobbying on several fronts on this issue. Plus, a lot of the blame goes to pro-family lawyers afraid to use effective arguments. 

Back in April, right after their Supreme Court hearings, we published an analysis of Prop 8 and DOMA "gay marriages" cases as it looked then. Here is our assessment of what happened Wednesday.

The DOMA case

The Supreme Court ruled 5-4 that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. (Section 3 defines marriage as one man and one woman for federal government purposes.) Specifically, they said that treating "legally married same-sex couples" differently is a violation of the Fifth and Fourteenth Amendments of the US Constitution.

Read the DOMA ruling (77 pages) HERE

What's particularly disturbing is the twisted legal logic the Court used to come to these conclusions. They basically lifted the talking points of the homosexual "gay marriage" lobby. The Court created a "class" of people -- homosexuals 

-- and declared that their behaviors and "unions" were no different than any other. And the pro-family lawyers did nothing to effectively counter those assumptions, so the Court basically ran with it and extrapolated absurd Constitutional "rights" from it.

So we are left with Supreme Court language that will surely haunt us more down the road.

And what's next?

In the near term, this will radically change things on a federal level, especially given the Obama Administration's enthusiasm for pushing "gay marriage." As we outlined in our April 8 report, overturning Section 3 of DOMA will accomplish the following:

(1) All federal benefits. It will require the federal government (funded by taxpayers in all 50 states) to include homosexual "marriages" in all federal benefits. This includes Social Security, federal pensions, Medicare, Medicaid, Veterans' benefits, and everything else involving marriage, including filing jointly on Federal income taxes.

(2) All federal programs. It also includes access to federal programs and other things run or controlled by the federal government, such as housing, federal loans, passports, health insurance, military housing, burial in military cemeteries, etc. Thus, the federal government would recognize homosexual behavior as equal to regular marriage throughout the range of all its activities.

(3) But even more frightening: Any federal funded contract, program, or activity. Given the wording of the decision it will also likely extend to any activities that receive federal funding, such as state programs, college programs, and virtually anything else involving federal money, such as federal contracts. We believe that the Obama administration will use this as a lever to accelerate the forced equalization of homosexuality with heterosexuality in all federal activities or anything connected to federal money -- similar to the way it did in the military with the repeal of "Don't Ask Don't Tell." Judging from Obama's statement celebrating the ruling, we can expect them to move as fast as possible.

Down the road: Legal challenges to other states' marriage amendments. This also opens the door for homosexual activists to go get friendly federal judges across the country to go state by state and strike down each state's constitutional amendments banning same-sex "marriage." They will cite the US Supreme Court's use of the 5th and 14th Amendments to support "gay marriage" rights and work to extrapolate that to individual states.

A fiery dissent from Justice Scalia

Also included in the ruling is a fiery dissent from Justice Scalia, who questions the Court's constitutional ability to decide these kinds of cases. Scalia says:

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

The Court is eager -- hungry -- to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges' intrusion into their lives. They gave judges, in Article III, only the "judicial Power," a power to decide not abstract questions but real, concrete "Cases" and "Controversies."

Thus Scalia brings up a larger and very serious issue -- Can the Court pronounce the law? -- that is the genesis of the despotic judicial activism in America and should have been addressed a long time ago, but particularly now.

The Prop 8 Case

The Prop 8 case is a little more complicated. The Court accepted the case and heard the arguments. Then they used a technicality to avoid making a ruling at all.

In a 5-4 decision, the Court said that the plaintiffs in the case didn't have standing to file the original suit to overturn the Federal District Court decision in August, 2010, which had ruled California's Prop 8 (which created a state constitutional amendment defining marriage as between only one man and one woman) to be in violation of the US Constitution. That was unsuccessfully appealed in the 9th Circuit Court, and then went to the US Supreme Court.

This was the problem: Normally, the plaintiffs would be the state officials, defending the law against the court's ruling. But in a very unusual move, California's pro-gay Governor and Attorney General refused to challenge the lower court decision. So a group of people who had organized the Prop 8 movement filed the suit themselves to defend the law. The Federal justices had no problem with that, and California law allows it. But the Supreme Court Justices said that those plaintiffs were not directly "affected" by the lower court ruling, and the Supreme Court's procedure was not to grant them standing. However, as the Court's minority opinion pointed out, they were considered to have standing under California laws, so it should have been allowed.

This appears to be an act of political cowardice on the part of the Supreme Court more than anything else. Everyone had expected them to go ahead and rule one way or the other, rather than find a way to avoid the issue. An obvious question, also, is: Why didn't the pro-family lawyers anticipate that, and include someone with obvious standing, such as a town clerk?

In addition, many believe that Justice Roberts should have recused himself from the Prop 8 case entirely. As was reported in CNSnews, Roberts' first cousin is a lesbian living in California who wants to get "married" to her female partner. Roberts gave her a front-row seat at the Supreme Court DOMA and Prop 8 hearings, and she wrote on a lesbian website that she was confident Roberts would rule "in favor of equality." Had Roberts recused himself, it would have been a tie.

Read the Prop 8 ruling (35 pages) HERE

What will happen next?

This ruling means that the Federal Ninth Circuit Court of Appeals ruling against Prop 8 -- which affected all of California -- is vacated, but the lower Federal District Court ruling against Prop 8 stands. However, that Federal District only covers parts of northern California. (So in that sense, the DOMA ruling has a positive aspect!) What about the other parts of California? Right now, that's up in the air. Technically, Prop 8 should be in effect in the rest of California.

We think the most likely thing to happen is that the Governor and Attorney General will simply ignore the "district" problem and start issuing "gay marriage" licenses throughout California. This would be an outrage, but not surprising. In fact, they have already announced their intentions to move in that direction.

Re-file the suit? It would appear that the a plaintiff with standing could re-file the appeal in the 9th Circuit Court. Such a plaintiff might be a town clerk who would be "affected" by the marriage law change. And hopefully they would get different judge than the "out" homosexual Judge Vaughn Walker. But at this point, we haven't heard anything along those lines.