The Supreme Court overturns the Defense of Marriage Act!

[thewayne]

This has been a long time coming, now the state fights will probably multiply like the flood of statements yesterday when part of the Civil Rights Act were thrown out.

I particularly liked this part: "In his dissent, Scalia said the court was exercising too much power and should not have even decided the case because Windsor had won in the lower courts “and so cured her injury.”

“That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive,” he wrote. “It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role.”"

I guess Scalia doesn't think that what the Court did in Citizen's United was not exercising too much power. But Scalia won't talk about CU, when it's brought up in public Q&A he says 'get over it!'.

The article says 17 states currently allow same-sex marriage. But 31 have constitutional bans against gay marriage or some flavor thereof. So this is just beginning, but now has a Federal basis opposing it.

http://www.wired.com/threatlevel/2013/06/scotus-same-sex-marriage/

http://en.wikipedia.org/wiki/List_of_U.S._state_constitutional_amendments_banning_same-sex_unions_by_type

Comments

[moiraj.livejournal.com]

Is Scalia correct that the courts aren't supposed to interpret constitutional law and throw out legislation that violates it, or is this just Scalia being Scalia?

In Canada, tossing out unconstitutional laws is a huge part of judicial role. The rights of gay people to marry was entirely determined by the courts. Three provincial courts from three different provinces decided denying gay people the right to marry was unconstitutional, the issue was brought to the Supreme Court of Canada not through a court battle but because that's what we do sometimes, and they decided the same. The legislation came after.

They also decided that the abortion laws were too onerous and tossed those laws out, too.

It's arrogant of me to assume other countries are the same, I know. I keep tripping over mines that demonstrate my ignorance of how other countries work.

[thewayne.livejournal.com]

Well, they can only consider laws that are brought to them in suits that have worked their way through the court process, and they first have to decide whether or not they want to hear the arguments. They can hear a case, they can refuse to hear a case, and they can send it back to the court that referred it up.

In California, a group sued the state to overturn Prop 8, a law that declared same sex marriage illegal. The Governor said 'we're not going to defend the law because we think it's unconstitutional.' A group of conservatives, including law-makers, tried to defend it in court. The state courts, and the appellate courts above them, declared that these people had no standing to defend the law, that only the state could defend the law and they elected not to. Same sort of thing happened with DOMA when Obama directed the Attorney General that he didn't want to defend the law. Some conservative lawmakers said they'd defend it, and the Supreme Court said they didn't have standing.

I think that the normal process is that the Supreme Court cannot, on its own, say 'Law X is unconstitutional.' Someone has to sue the government to argue for it being overturned. And normally it's an all or nothing proposition, which makes the Citizens United decision all the more perplexing because the Supes actually modified a law in their ruling.

[moiraj.livejournal.com]

Well, I feel like an idiot. My memory was a little off. The Canadian government did draft a bill, though after the provincial courts made their decisions. Before the legislation was presented in Parliament, the government referred it to the Supreme Court and asked about the constitutionality concerning gay people having the right to marry. The Supreme Court said they did, and after a bunch of shenanigans, especially from the premier of Alberta at the time, the legislation was passed.

I don't know if the SCC can actually rewrite law - I've been looking but can't find a definitive answer - but it can say how laws are to be interpreted. And it can strike laws out. Back in the 1980s, it said the abortion laws of the time were too onerous and tossed them. The legislature could have created new laws that might have been approved by the SCC, but none have tried yet.

Here, it is possible for people not directly involved in a case to bring issues before the court under certain circumstances, but there is a test to be met and it doesn't happen a lot.

[silveradept]

The injury wasn't cured, because the federal government still refused to recognize her marriage.

Also, Scalia said that today's ruling paves the way for the federal government to force states to recognize marriages performed in other states, overturning their bans. Considering Scalia was right about the Lawrence decision leading to this one, we hope he's right again, and it moves faster this time.