The other shoe drops for gay marriage
It should come as no surprise that attorneys general in six states, have refused to enforce state laws upholding traditional marriage or that federal judges in Utah, Oklahoma and Virginia have overturned voter-approved laws defining traditional marriage as between one man and one woman.
And, it should come as no surprise that Attorney General Eric Holder—who at one time fulfilled his constitutional duty to enforce DOMA before he refused to continue doing so--now advises state attorneys general to follow his lead and decline to defend state laws they believe are unconstitutional (like laws prohibiting gay marriage or upholding traditional marriage).
It should come as no surprise because the proverbial writing was on the wall in June 2013 when the Supreme Court handed down the Windsor and Perry decisions.
Justice Kennedy ruled in Windsor that there could be no legitimate reason for enacting DOMA other than bigotry and that the law was therefore unconstitutional. As I wrote in “Sacrificing Freedom on the Altar of Marriage Equality” Windsor provided activists across the nation with the legal fodder to attack existing state laws upholding traditional marriage: If the Supreme Court of the Land decreed that a federal law defining marriage as being between a man and a woman was reprehensible, rooted in bigotry and constitutionally indefensible, then it stands to reason that similar state laws must be equally odious. Therefore, the “popular will” in any given state would be forced to yield to “executive fiat” fueled by “activist hubris” about knowing what’s best for society.
In the companion case of Perry, the Court held that only Governors and Attorneys General have standing to defend a state law. Therefore, if the Executive declines to enforce or defend a state law they find “personally detestable or politically undesirable” (like California’s Prop. 8), then that law will not be enforced or defended in court and that’s that. The law, while on the books, will have been completely neutered. The will of the People as expressed at the polls would be undermined by a handful of activists, jurists and executives who, once again, think they know better.
It’s been a scant eight months since Windsor and Perry were decided and, in that short time, the legal process has been bastardized to reach a socio-political end that some might have once embraced but will certainly come to regret. The written word of the Supremes in combination with Obama’s pen have so profoundly whittled away at our democracy and the power of the people, that even liberal constitutional scholars like Jonathan Turley have had to pause.
Scalia predicted as much in his dissent in Windsor:
In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that “personhood and dignity” in the first place. As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe. (Citations omitted.)
Well, it didn’t take long for the other shoe to drop. But that loud, jarring thud seems less of a shoe and more of an Orwellian boot “stamping on a human face.”