The Supreme Court on Gay Marriage: A Quandary of Confusion

By Dr. Jeff Mirus ( bio - articles - email ) | Jun 26, 2013

With respect to gay marriage, the United States Supreme Court today refused to enter into the issue of defining marriage, and instead used considerations of State authority to resolve the cases before it. The immediate result favors supporters of gay marriage. The long-term result is uncertain, and is still open to being determined, in effect, by the culture without Federal interference.

In United States v. Windsor, the Court ruled 5 to 4 that the denial of marriage benefits to gay couples whose marriages are recognized by a State is unconstitutional. This denial of benefits was one part of the Defense of Marriage Act passed by Congress in 1996, at a time when no American states recognized gay marriage. Based on the fact that twelve states have now done so, the Supreme Court struck down this portion of the Act, arguing in essence that the Federal government cannot override the several States on this matter. If a State recognizes any marriage, then denial of marriage benefits to those in that marriage is unconstitutional.

In Hollingsworth v. Perry, the Court ruled (again 5 to 4) that opponents of gay marriage did not have standing to challenge a lower-court ruling overturning Proposition 8, which was passed by referendum to overturn the State of California’s recognition of same-sex marriage. You will recall that the sequence was this: 

1. The California State legislature voted to recognize gay marriage;
2. The people of California mounted a referendum to overrule the decision of the legislature, in order to stop the recognition of same-sex marriage (a procedure provided by the State Constitution);
3. The referendum (Proposition 8) was challenged in Federal court, and overturned by a Federal judge (who, incidentally, argued that there was no rational basis to distinguish between same-sex marriage and marriage between a man and a woman);
4. This Federal ruling was appealed to the Supreme Court;
5. The Supreme Court ruled that only State officials had standing to defend the State Constitution (in this case, Proposition 8) against Federal encroachment, not private citizens, and since the State did not wish to appeal the decision through its officials, the lower court’s ruling would stand.

In both cases, then, the Supreme Court made its decisions on the basis of the powers of the States. In one case, the Court relied on the power of the States to legally define marriage to make its judgment; in the other, it relied on the tradition that only State authorities, not mere interested parties, can challenge a ruling which might appear to interfere with State power.

As one dissenting justice said of the California case, the ruling against the standing of the plaintiffs did not do justice to the California Constitution, which specifically enables the people (i.e., non-officials) to override State officials by changing the Constitution through a referendum process. Hence the binding character of future referenda in such states would now seem to be at the mercy of individual Federal judges.

Still, it is important to note that in neither case did the Supreme Court seek to settle the question of the legal definition of marriage, or to take that definition out of the hands of the States. For example, the Defense of Marriage Act includes a provision which stipulates that no State is to be forced by Federal law to recognize same-sex marriage. The Court—recognizing that this section of the law was not at issue in the case before it—declined to make it an issue, or to give any indication that it ought to be an issue. Thus, again, the Supreme Court at the moment seems content to leave the legal definition of marriage in the hands of the States.

The Perils of Human Jurisprudence

Fifty years ago, during the heyday of the very activist Warren Court, I suppose we would have been very happy to have the Supreme Court leave things to the States. But it is surely another symptom of the decline of our culture that the Court is willing to do that only now, when the States themselves are gradually moving against the natural law on marriage. These decisions may have been reached on jurisdictional grounds (though the clarity of such grounds is always suspect in 5-4 decisions), but they have the convenient result of keeping the Court out of the maelstrom while not changing the deteriorating status quo which the maelstrom has produced. (The recent decision on the constitutionality of the fines—oh, I mean taxes—in Obamacare would seem to be another case in point.)

Western law was traditionally built in part on the natural law, with the idea that anything contrary to the natural law (or the law of God) was null and void. Admittedly, this too is problematic, for there is no culture in which the legal profession sees the natural law clearly, easily and without any dissent. The principle was protected for a long time in the West by advertence to the Church as the ultimate and infallible arbiter of the natural law. But in a culture which no longer recognizes the natural law, and which is no longer substantially buttressed by a religion which incorporates the natural law, and in which the natural law has been all but driven out of the training of lawyers and judges—in such a culture jurisprudence becomes something more of a roulette wheel than would otherwise be the case.

Human justice is incredibly limited even at the best of times. There is a certain justice in saying that, if the government defines your status to be such-and-so then you should have all the rights and benefits which pertain to such-and-so. This is the essence of the Court’s decision in the Federal case. There is a certain justice in saying that if State authorities are, under our legal traditions, the ones who have standing to defend State laws again Federal encroachment, then—as with other cases in which standing is required to sue—a court should not take an argument from a plantiff who, or so the law would suggest, has no horse in the race. This is the essence of the Court’s decision in the California case.

A great many of our legal judgments depend on such secondary questions of  procedural consistency, and our legal system is no longer very good (if it ever was) at getting past such questions to the larger injustices they mask. We recall, for example, the immense problems with judicial decisions surrounding the issue of slavery in the nineteenth century, surrounding Indian affairs before that time, and surrounding abortion a century later. In fact, all human legal systems struggle to approximate true justice even when they have the best of intentions. Without any overarching perception of what true justice is, our legal systems do little more than flounder along somewhere between current cultural prejudices and current judicial rules.

I do not regard today’s decisions as particularly noteworthy. They are, I think, simply more of what we have come to expect from the fractured confusions which frequently dominate justice in this world, and which certainly, at the present moment, dominate justice in America.