Windsor’s Marriage Assumptions
To judge from most of the media coverage, today’s Supreme Court decisions in the marriage cases were supposed to give us a final answer on whether the U.S. Constitution requires the states to redefine marriage. They did not. In fact, what we learned from the cases was more about what executive officials can get away with if they want to get rid of enacted laws with which they do not agree. The combined effect of today’s decision is to give them the ability to collude with advocacy groups to throw cases challenging the laws. If they win, they are free to appeal to get a higher court to confirm the decision or not to if they are afraid they wouldn’t get the result they like. Obviously, they will need to find judges willing to go along, but that doesn’t appear to be an insurmountable obstacle.
Even though we did not get a final settlement of the debate in these decisions, there are reasons to be concerned. As I discuss in a submission to SCOTUS Blog which should go up later today, the majority opinion in the DOMA case rests on assumptions about marriage which cast it as a government vehicle for valorizing a private relationship. The court mentions children but only as potential trickle-down beneficiaries of the relationship of the adults who are raising or who have acquired them. If that notion is widely accepted it will constitute a cultural loss.
Overall a bad day at the Court, but the fight continues.