Prop 8 vs DOMA decisions — why this is a conflict

Proposition 8 has just been struck down at about the same time (in judicial terms) as the States Rights clause in the Constitution was used to strike down part of the Defense of Marriage Act in regards to Massachusetts gay couples.  They’re both resounding, strong and encouraging victories for gay rights, but they conflict and it could create a decently heavy mess that will probably only be sorted out by the Supreme Court in coming years.

Here’s how:

In the case brought by Attorney General Martha Coakley against the Federal Government, one of the more important points brought to the discussion is the Commonwealth’s right to be able to determine who is and who is not married based on past precedent of marriage laws in the United States.

Specifically for Massachusetts, Iowa, New Hampshire, Vermont, Connecticut and the District of Columbia, this means that the court ruled in favor for their right to self-determine who is considered married.  The States’ Rights Amendment to the Bill of Rights had been violated based off of past legal precedent of marriage law being determined, with little exception, by the States themselves.  If the Federal Government chooses which kinds of marriage — same-sex versus opposite-sex — are eligible for Federal marriage protections and benefits, it infringes upon that state’s traditional right to marry whomever they choose.

This sword cuts in multiple directions.  It also means that same right is conferred to the majority of states who have banned same-sex marriage through state constitutional amendment processes.  So, a victory for Massachusetts, but also for Arizona, Utah, South Carolina, et al who have banned gay marriage, or, more specifically, define it as the dualistic union between man and woman.

It was a victory for both gay rights advocates and opponents, like the National Organization for Marriage.  They’re using the state-by-state method as well to ensure that gay marriage is not allowed in any state, simply put.

In the Proposition 8 case, it’s a similar situation though the scope was broader.  The 18,000 same-sex couples that got married in the “window” as it’s been called, before Prop 8 was repealed by voter referendum was determined to violate the Federal Constitution’s guarantee of equal protection under law, as well as the Constitution’s guarantee of due process for all citizens.

This is great in that it is finally a concrete ruling one can point to and say “THIS is the government acknowledging that gay people do, in fact, suffer from an unjust discrimination”  at least in terms of marriage law and its enforcement.

However, this also brings with it the idea that the Federal Government does have control over marriage in some way because Prop 8 is a violation of Federal Laws.

So, DOMA violates Federal Law by restricting who can be married which is a right that the Prop 8 appeal confers to the Federal Government.

We have seen cases where the Federal Government has ruled on marriage in the past.  The Supreme Court overturned the laws regarding inter-racial marriage on racial freedoms grounds.  Not completely on the grounds that marriage is a conferable right (which was part of the argument, but not entirely crucial to its end-result), though it is an important component.  The Supreme Court has ruled that marriage is a right for all people and that citizens have a right to choose whom they marry.

It’s just never been framed in a gendered perspective before, just a racial one.  This is where the precedent should be set and the focus should be, not on “if” it’s a right, but how that right is enforced.  Is the Federal Government believing that marriage is heterosexual only?  Or can people of same or of indeterminate/variant gender marry?  Why is gender a factor when marriage is a government contract and not, from a governmental perspective, a religious or moral question?

These two rulings, while solid and good on their own, conflict in a fundamental way.  This will go to the Supreme Court in one or both of these cases and it will be huge.  On which side will the court fall?

Disclaimer: This post was written by a Feministing Community user and does not necessarily reflect the views of any Feministing columnist, editor, or executive director.

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