Note: this series of posts is based on a talk given by staff of the Subcommittee for the Promotion and Defense of Marriage at a conference for Catholic marriage and family life ministers in July 2013. It is broken into two parts, with seven posts total.
PART ONE: What we can learn from the Supreme Court
Post #1: Background: June 2013 Supreme Court decisions on marriage
Two major Supreme Court decisions on marriage were handed down at the end of June 2013: one on the federal Defense of Marriage Act, or DOMA (United States v. Windsor), and the other on California’s Proposition 8 (Hollingsworth v. Perry). While the decisions were not the “Roe v. Wade moment” for marriage as they could have been – marriage was not redefined throughout the entire country – they were very damaging, to say the least.
The decision regarding Proposition 8 was that the defenders of Prop 8 had no standing in Court, meaning that the Court could not rule on the merits of the case – whether or not Prop 8 was unconstitutional – because the party defending Prop 8 didn’t have the legal ability (or right) to do so.
On the one hand, this was a relief. The Court could have said that Proposition 8 – which defined marriage as the union of one man and one woman in the California state constitution – was unconstitutional, which would have called into question the over 30 state constitutional amendments and statutes saying the same thing.
But the Court in effect gave that question a “pass,” and legal experts are currently parsing out what exactly the ruling means for California. [Update: To date, the net effect of the ‘no standing’ decision has been the State of California applying statewide the August 2010 ruling by the U.S. District Court in San Francisco. That ruling found Prop 8 unconstitutional, and applying it statewide means that same-sex ‘marriage’ licenses can be issued throughout the state. We await whether a state official with ‘standing’ will challenge the statewide application of this earlier U.S. District Court decision.]
The ruling in the DOMA case was more substantial and thus more problematic. The Court ruled that section 3 of DOMA, which defined marriage as the union of one man and one woman for purposes of federal law, is unconstitutional. In effect, this means that any marriage recognized by a state – including a “marriage” between two persons of the same sex – will also be recognized by the federal government, such that the 1,000 or so federal laws which use the word marriage – affecting things like estate taxes, immigration, military benefits, and so on – will now define marriage not as the union of one man and one woman but as a state-recognized relationship of any two persons.
For our purposes here, we won’t get into the potential legal ramifications of the Prop 8 or DOMA decision – we’ll leave that to the lawyers and policy experts. Instead, we’re going to use four key themes from the Court’s DOMA decision as a window of sorts into what we’re up against in terms of the current marriage debate. After all, only when we accurately diagnose our culture’s malaise and distortions can we offer an appropriate antidote. For each of the challenges, we’ll offer a tip or tool as a suggestion of how to best promote and defend marriage in your sphere of influence.
(As an explanatory note, when we say “the Court,” we mean the majority opinion of the DOMA decision, delivered by Justice Anthony Kennedy and joined by four other Justices. We’ll also share some counterpoints from Justice Alito and Justice Scalia, both of whom dissented to the Court’s majority opinion.)
Next: Post #2: Unspoken assumptions & reframing the debate