Friday, June 26, 2015

SCOTUS - Right and Wrong on Gay Marriage

The Supreme Court has done it again. They got it right; but for the wrong reason; in the decision this morning to protect Gay Marriage. That they used the 14th Amendment to do so, rather than striking at the root of the problem, is troubling to me, if no one else. Let me attempt to clearly state why.

The whole shebang centered on the ill-conceived DOMA act which was first introduced by Bill Clinton in 1996. It was a midterm election effort to retain those voters who were as yet uncomfortable with Gay Marriage. But in crafting the thing they put a major chip in the Constitution.

Article IV, Section 1: (1789)

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

This Article makes it possible to be married in one state and move to another without getting married again. It covers everything from car registrations to interstate commerce. It’s what keeps the local sheriff from knocking on a motel door demanding to see a local wedding license. It’s the very essence of the interaction between the states on so many levels that I have always wondered why they essentially broke it with the 2nd section of DOMA; the third section of which was later declared unconstitutional by the Supreme Court. But Section 2 was left intact, and as far as I can tell, in spite of today’s ruling, remains so.

Here is the entire act with the troublesome 2nd Section in bold italics.

DOMA (1996)

Section 1. Short title. This Act may be cited as the "Defense of Marriage Act".

Section 2. Powers reserved to the states. No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3. Definition of marriage. In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

It is hard for me to understand just why the Court simply did not address the 2nd Section when striking down DOMA. That would have prevented the individual states from going through the unnecessary judicial proceedings of the last decade, with each state fighting for or against Gay Marriage on the basis of States Rights; which is clearly allowed by Section 2 of DOMA. In striking down DOMA’s 3rd Section only and leaving Section 2 intact they created the whole problem they resolved this morning by using the 14th Amendment to reach their decision.

But, still troubling is the fact that the 2nd Section of DOMA is left intact; giving rise to the question just why it has not been struck down by the Court; even with today’s new ruling. Leaving it intact only creates a precedent in law which still undermines Article 4 Section 1 of the Constitution.

If I am probably the only one troubled by this, I can only recall the time when I was working on an appeal for some charge against me while in the Navy aboard the USS Neosho. The Captain found me poring over the Ship’s Organization and Regulation Manual and refused to let me continue with my research. He would not allow me to use the book. I asked him if it would not be more convenient for the Navy to take only sailors who couldn’t read. He never answered but there are times when it does seem like a curse to be able to do so. 

No comments:

Post a Comment