To celebrate today’s two partial victories for same-sex marriage, I recommend champagne for your aperitif tonight — from France, since we finally shed our bias against same-sex marriage. Or, put differently, our Puritan (read prudish), antiquated protection of marriage only between a man and a woman, or heterosexual marriage. DOMA (Defense of Marriage Act) went down in a 5–4 decision inU.S. v. Windsor. and while the Court left it up to the states to decide their own marriage laws, it is still a victory.
But for the Prop 8 case (Sekhar v. U.S.), you’d better switch to a California champagne, since you can hopefully marry in this state. The Supreme Court will not try to fight the nationwide trend in support of same-sex marriage, though this is on the basis of jurisdiction (a question of standing), rather than the merits of the case.* That the question was one of jurisdiction (many scholars would call this a “technical”matter), is reflected in the larger vote that was not cast along right/left ideological grounds.
Scalia delivered the opinion, with Roberts, Thomas, Ginsburg, Breyer joining. Then, Alito writing a concurring opinion with Kennedy and Sotomayor joining.
Now, if you’re not too tipsy yet, go ahead and get on the states’-rights or “federalism for public purpose” bandwagon that Obama supports, not just with same-sex marriage but also climate control and in the implementation stage of Obamacare, and even the Dodd-Frank Consumer Protection Act, as I spelled out in Out of Many, One: Obama and the Third American Political Tradition.
And go ahead and switch the order of domestic versus foreign bubbly, since this same-sex celebration is a glass that’s half, or let’s say 3/4 full.
Personally, yesterday’s ruling on the Voting Rights Act put a damper on me imbibing anything, unless it’s drunk at a civil-rights protest or a march across some bridges in the South or Arizona. Let’s hope Representative John Lewis from Georgia or other civil-rights leaders can lead us there, and it does not turn into a historic brawl.
*corrections from yesterday.
Ruth Frick O'Brien 