On Gay Marriage

Up front, I want to reiterate (for those who haven't followed me on this before, or who have fogotten) that I am not in favor of government restrictions on marriage. To me, the only two proper positions are getting government out of the marriage system entirely, or opening up government marriage to any pair of unmarried consenting adults. Therefore, I oppose both sides to the marriage debate. I think DOMA is wrong, and I think the state laws that legalize gay marriage, but keep marriage between close blood relations illegal, wrong.

But deeper than my hatred of such government restrictions on marriage, is my hatred of tortured legal decisions that are clearly designed to reach a particular outcome, while ignoring the rule of law. And that's what we've got here, with the DOMA decision.

I agree with the Prop. 8 decision. I agree Prop. 8 is arguably unconstitutional, because of the equal protection claims, but I would find a law legalizing gay marriage to be equally unconstitutional, as it would similarly discriminate against other marriages. But regardless, the petitioners had no standing. Only Roberts and Scalia were consistent in this. The dissenters -- including Kennedy, Alito, and Thomas -- said that the point of the California initiative process is to bypass public officials. But that puts no burden on the federal courts to intervene: if the California government refuses to defend the voter initiative, then the California voters should pick new people to represent them in that government. That is not the federal court's concern.

On DOMA, we have a similar issue: President Obama refused to defend DOMA in Court. That necessarily means that the Court should not have heard the case, because there was literally no dispute before it. The case's name is United States v. Windsor, but in effect, the case decided on was United States and Windsor, because both parties agreed with the lower court's ruling.

And the argument for DOMA was similarly nonsensical. It doesn't actually make a case for unconstitutionality. It claims that the purpose of DOMA is to punish or harm gay couples, and uses that falsehood as a jumping-off point to assert that the government can't punish people for such things, therefore it's wrong: "By seeking to injure the very class New York seeks to protect, DOMA violates basic due process and equal protection principles." But they were not seeking to injure. The argument is obvious nonsense.

The other half of the argument was that DOMA was so broad and spilled over into the states, it couldn't be justified, but somehow that argument didn't fly in regard to a much broader law, the Affordable Care Act. And even if this were the case, they could have struck down only the portion of the law that intruded onto state responsibilities, and left alone the part that was strictly regarding federal responsibilities (federal taxes and so forth).

It's hard to see how Breyer, Ginsburg, Sotomayor, and Kagan would have applied the same reasoning to other state vs. federal power disputes. The ACA is one obvious example. Also consider a case of the EPA vs. a state law to protect property rights from the EPA.

What's absolutely clear here is that on both the issue of standing, and on the constitutionality question, the majority just feared being on the "wrong side of history," and threw out the rule of law to achieve their desired ends. And that -- not the legalizing of gay marriage at the federal level -- is the scary part of this decision.