The US Supreme Court issued two decisions yesterday bearing on the issue of gay marriage. The press and the blogosphere have been going crazy. Ordinarily, this is not an issue that concerns us here at our humble blog, but there is a bit of a connection to The Controversy between evolution and creationism.
For example, we found an article on the subject by Ken Ham (ol’ Hambo), the ayatollah of Appalachia, co-founder of the on-line ministry Answers in Genesis (AIG), which also operates the infamous, mind-boggling Creation Museum. Hambo’s offering is Supreme Court Defies God’s Word. One excerpt should be sufficient:
These decisions are being hailed as great gains for the homosexual rights movement. But in reality, we are seeing the fruit of a culture that has “exchanged the truth of God for the lie” (Romans 1:25). From the beginning of creation, our Creator God established marriage as the union of one man and one woman: Adam and Eve were the first married couple and our example. Furthermore, there is not a single Bible verse in support of homosexual unions; instead we find repeated condemnation of this behavior.
That’s not a surprising reaction. Creationists are often theocrats who think that we should be governed by scripture. Ol’ Hambo has revealed his theocratic tendencies before — see Ken Ham Unhinged: Creationism & Theocracy Too. A few days after that, we posted Is America a “Christian Nation”? In those two posts we decisively (in our humble opinion) dealt with the issue and dismissed it.
But now it’s back, and it’s not just Hambo. Religiously-motivated conservatives are howling. So let’s take a look at what happened yesterday. We’ll discuss the cases one at a time. The first is UNITED STATES v. WINDSOR. That’s a 77-page pdf file at the website of the Supreme Court. It’s perilous to try to simplify things, but that’s what we’re going to do.
Edith Windsor and Thea Spyer, both women, were legally married in Canada. They moved to New York, where such marriages are legal. Spyer died and Windsor was the executor of her estate. The issue was the estate tax marital deduction, according to which property that a decedent leaves to a spouse is a deduction from the decedent’s estate, so it won’t be taxed — until the second spouse dies.
As with all gay couples, Edith Windsor was denied the marital deduction. That’s how the IRS did things, and that was backed up by the federal Defense of Marriage Act (DOMA), but Spyer decided to fight. She paid the tax (about a third of a million bucks) and sued for a refund. The legality of DOMA as it applied to the marriage — and thus to the federal estate tax — was the issue. Could the marital deduction be limited to only male-female marriages, or did it apply to all legal marriages? In more grandiose terms, could a federal statute override a state’s marriage law?
To cut through all the legal verbiage, the court (in a 5-4 decision) said that the states control the definition of marriage, and that can’t be superseded by a federal statute. So while the media are heralding this as a “liberal” decision favoring gay marriage, we see it as a proper decision involving straightforward constitutional question, and we like the result: In matters of marriage, state law is controlling.
The second decision was HOLLINGSWORTH et al. v. PERRY et al. It’s a 35-page pdf file at the Supreme Court’s website. This one is more complicated. It was about a challenge to California’s Proposition 8, which amended that state’s constitution to define marriage as a union between a man and a woman, thus preventing gay marriage in that state.
A couple wishing to marry challenged that provision, and the state (for whatever reason) refused to defend it. In lieu of state officials, the trial court allowed the promoters of Prop 8 to defend it. The trial court then declared Prop 8 unconstitutional (thus permitting the gay marriage), and the promoters of Prop 8 appealed. The Ninth Circuit affirmed the trial court’s order. That made headlines at the time.
The same promoters of Prop 8 then took the case to the US Supreme Court. To make a long story short, the US Supreme Court (properly in our opinion) said that the proposition’s promoters weren’t the proper parties to bring the case, and they vacated the appellate decision, saying: “the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.”
So when the dust settles, all that’s left is a California trial court’s decision against Prop 8 and in favor of the gay couple. But one trial judge’s decision isn’t binding on other courts, so in our humble opinion the fate of Prop 8 is still very much undecided. Yet that very technical decision by the US Supreme Court is what’s being heralded as a big victory for gay marriage.
What does your Curmudgeon make of all this? It doesn’t really matter, but we like these two decisions for the way they recognize the relationship of the states and the federal government. States that allow gay marriage may continue to do so, and the feds can’t interfere. States that don’t allow gay marriage aren’t affected by any of this — well, California’s Prop 8 is still in limbo, but at the moment that’s a question for California to decide. Will they abide by their state Constitution or won’t they? And does the California Constitution (with Prop 8) violate the federal Constitution? Nobody really knows yet — the US Supreme Court says it hasn’t been properly decided.
Yes, we know what you’re thinking: If DOMA is dead and if a couple are legally married in one state, doesn’t that mean they’re legally married in all states? We don’t think so. It’s not like the old Reno divorces (Nevada was the first state to make divorce easy), whereby if a couple traveled to Nevada for a quickie divorce they were legally divorced in all states. That’s because a divorce is a court decree, and the Constitution’s full faith and credit clause requires all states to recognize the court decisions of sister states.
Marriage, however, is the result of a state statute that creates status. Maybe an expert knows this better than we do (that wouldn’t be difficult) but we don’t think the full faith and credit clause applies to status-creating laws. The only exception we can think of is the Dred Scott decision (a slave in one state is a slave in all), and that’s not the law any more. Think about it. If your state lets you drink at 13, marry at 14, and vote at 15, that’s very nice, but if you’re still 15, don’t move to another state that defines adulthood differently and expect to do the things your home state allows.
So what’s the bottom line on these two new court decisions? The creationists can sputter in fury and the media can swoon in ecstasy, but we don’t see either of these cases as being any big deal.
What sort of comments are we expecting? We’re not interested in debating the merits (or lack thereof) of same-sex marriages. Your Curmudgeon has never cared about how other people choose to live their private lives. We don’t even know if our own state allows such marriages. We’re not expecting any passion about this topic — but one never knows. We’ve opened Pandora’s Box, so to speak.
Copyright © 2013. The Sensuous Curmudgeon. All rights reserved.
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The Sensuous Curmudgeon 
The court took a very cautious approach to these issues, and any true conservative should applaud their prudence. Many, including the old-school republicans in the congress, are fine with it and would like to move on and leave the issue up to the states.
The theocrats, and those who rely on them, are sputtering. Fun to watch.
The Windsor majority wanted us to think it was deferring to states rights to define issues of domestic law, but it held DOMA unconstitutional on equal protection grounds. After dancing around a technical (but quite serious) procedural problem with standing, the Court essentially accused the Congress and President of enacting a law for the very purpose of singling out and harming a class of citizens in violation of the equal protection clause of the 5th amendment.. Scalia wrote a great dissent, cautioning readers not be fooled by the majority’s apparent and new deference to state’s rights, and why the court should have dismissed this case as a non justiciable claim.
I’m going to disagree with your analysis of the Windsor case. You are CORRECT in the analysis you posted…but you left out perhaps the most important part of Kennedy’s decision. The majority said the law violated the 5th amendment. Quite different than a simple state supremacy clause decision as you posit…and which would have been SUFFICIENT. No….instead Kennedy goes on about animus and unequal treatment and makes the DOMA decision far broader than it has to be. He and the majority are signaling that when the right time and case comes along…a majority is ready to rule on gay marriage on an individual right to marry basis. Frankly…I would have preferred a narrower decision like you cited because this really complicates things for the lower courts now.
Prop8 was a political decision…adding 20% of the population to those who can choose gay marriage while not bludgeoning the red states into submission until stronger nationwide majorities exist and more than 1/4 of the states approve. Just look at the strange bedfellows who formed the majority and try to explain their reasoning on standing as anything but political.
Ed above has it just about right as far as WE conservatives who are not theocrats go. Good decisions…with more to come over time as the country is ready….and it WILL BE.
There are far, far, more important issues that need our attention. We must ask ourselves, “How does forbidding a certain class of people to marry help society?” An honest examination can show no benefit; thus, any two adults who are free to marry and wish to be married should be allowed to do so, and the marriage should be recognized in all jurisdictions subject to the US Constitution, which guarantees equal protection under the law.
That would truly be a “defense of marriage”. Disclaimer — I’m a heterosexual male, happily married for (pauses to think) 44 years. Furthermore, I’m not aware of any relatives or close friends who would be directly affected by legal recognition of gay marriage. To me, it seems clear-cut — it’s equal protection.
So, let’s allow and recognize all marriages, and move on to the issues that are truly important.
retiredsciguy says: “There are far, far, more important issues that need our attention.”
Of course. Most people feel that way, regardless of their personal opinions about gays. But if one political party becomes obsessed with this topic and makes it a central issue in all political campaigns, they’ll be perceived as crazed. That allows the other party to dominate the game.
What a shame that the Republican “leadership” seems unable to avoid this train wreck.
The Republican Party leadership has been co-opted by the religious right, and they are driving the train purposefully right into the wreck.
The Republican Party of Barry Goldwater, Dwight Eisenhower, and William F. Buckley has become a theocratic nightmare whose purpose is to shrink government down to a size that will fit nicely into your bedroom.
I think it would be more interesting if DOMA was being challenged by a true hermaphrodite. Such people are extraordinarily rare, but they do exist. Since DOMA defines marriage as between a man and a woman, this narrow definition actually excludes a class of people from marriage altogether.
No one wants to take the opportunity to pick on Hambo’s ‘one woman and one man’ trope? It’s as accurate and useful as the rest of his creationist factoids. Were Adam and Eve even really married? If it isn’t written there, he’s just making stuff up that isn’t in the Bible, just like us evolutionists 😉
@Charles: Good point. I don’t recall Adam and Eve getting married, and that would definitely merit a verse or two if it happened. They were just a couple of happy nudists frolicking in their garden, until they ate a piece of enchanted fruit, and life went to hell.
@Troy: Damned good point re: hermaphrodite. If such a person were to bring suit and prevail, would he/she be known as Mighty Hermaphrodite?
@ Charles Deetz: I’m no bible scholar, but weren’t some of those Old Testament dudes polygamists? And about Adam and Eve being married, I can’t say. I wasn’t there.
Interesting argument that marriage is a state.
So as it stands now, you can marry a person of your gender in say – New York, then move as a couple to another state which doesn’t recognize your marriage. Then you are not married in that state, but what if your spouse dies, do you then get a deferment on federal taxes, since you are married, or not since you are not married in the state of your residence?
What then if the state you reside in allows first cousin marriages. Assume your spouse is still alive and you have not divorced. Since you are not married in the state of your residence, are you then able to marry you 1st cousin?
If you do which of your spouses get the deferred federal tax benefit if you die?
Now assume you again move to a state that neither allows same sex marriage nor marriage to a 1st cousin. Since you are not married in this state, are you free to marry a consenting adult of the opposite sex in this state?
If so what happens when you cross state boundaries to a state which allows both same sex marriage and 1st cousin marriages? Are you now a bigamist?
In my eyes the floodgates have now opened for a series of court challenges by people injured by laws forbidding gay marriage.
Before there was the fallback position that no one was singled out by these laws since everyone had a right to marriage. Now people will experience real harm based on the fact that an arbitrary restriction makes their marriage void.