Those two combinations of letter will be for ever etched into the summer of 2013.
I'm not going to go into the merits of either case; what I am going to talk about are the opinions delivered by the court; they are almost as interesting as the decision.
Justice Kennedy delivered the majority opinion. It should be of note in the last 15 years of same-sex related cases, Kennedy rarely dissented but, when a substantial case of homosexual rights is before the court, Kennedy has authored the opinion. He is also considered the median voter on the court, and, behind CJ Roberts, one of the most influential.
Within the first two pages, the Majority emphasizes this ruling only applies to Section 3 of DOMA, not Section 2. Sec 2, "which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States." This is a very important statement for it places restrictions to which the opinion can be applied. It also implies that the court, at least in this case, will not be infringing on the states rights to determine if they will recognize same sex marriage in another state.
All of the opinions start with the standing of the case before the court. Kennedy (and the majority) state that even though the President instructed the Justice Department to not argue against DOMA, but instructed the IRS to enforce the estate tax on the petitioner, this created "redressable injury". Where the opinions diverge is at this point. The Majority believes "The Government’s position—agreeing with Windsor’s legal contention but refusing to give it effect—meant that there was a justifiable controversy between the parties." To the Majority, this is enough for standing and the case should be heard and decided.
In the majority opinion, it is notable there were many...passive references to substantive due process and strict scrutiny under the law. This is really important because it brings in this idea that LGBT are a suspect class (similar to minorities) and as such, to be given greater protection under the law.
CJ Roberts opinion is interesting for while he does agree with the dissenting opinion to the constitutionality of DOMA he does not emphasis it. Instead he writes his opinion to point out his belief that the decision of the majority (and the decision to even hear the case) should only be applied to DOMA and nothing else. This is not surprising. Roberts is the protector of the legitimacy of the court and, in turn, is savvy enough to understand what this means and is naturally cautious of the political ramifications.
I'm going to come right out and say this: I think Justice Scalia is an ass and I had a hard time reading his dissent. He reminds me of a petulant child who, when he doesn't get his way, enjoys passive-aggressive sarcasm to make it look like he is similar to a likable uncle.
That being said; Justice Scalia (along with Thomas and Alito [and in part the chief Justice]) doesn't even believe that the court should have heard this case. His main argument to the jurisdiction of the case is that under Artictal III Section 2 of the Constitution, the Supreme Court does not have jurisdiction in many cases (moot or hypothetical) and this is such a case. I quote, "They [the defendant and the Government] agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?" Couldn't more clear with that one. He believes that the advisory nature of this case means it has no standing with the court.
Scalia continues to lament on the majorities passive use of strict scrutiny. He hammers on the fact that strict scrutiny has only applied to cases which hold historical and traditional issues. Because same sex marriage (and LGBT rights) are so new to this country, there is little precedent and as such, no allotment for substantive due process. An interesting argument considering Scalia uses his own dissenting opinions from other cases to go against the majority here.
The final argument for the dissenting opinion is that the constitution does guarantee the right to same sex marriage. What ever, it also doesn't guarantee the right of a black person to be counted as a whole person, so suck it.
What about the due process clause of the 5th Amendment? Justice Alito writes:
"it is well established that any “substantive” component to the Due Process Clause protects only “those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,' as well as 'implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’ It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation’s history and tradition. In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution."I'll leave you to interpret that how you will.
Lets review. The case almost never made it to the Supreme Court (I think it shouldn't have been heard, but there were political reasons for the writ to be approved). Section 3 of DOMA is invalid, but not Section 2. The CJ is hesitant to get involved in this type of case again (Prop 8). Scalia is...Scalia. And the conservatives on the court acted like everyone thought they would.
Now, Prop 8:
Vacated and remanded. This is really interesting because it is the same reason why the CJ and some of the dissenters did not want the DOMA case heard. They felt that neither the petitioner nor the respondent had standing before not only the Supreme Court but the 9th Circuit Court. Which means the decision at the last highest court to hear the case, the California Supreme Court, stands. The referendum to ban same sex marriage in California is unconstitutional. The reason for not hearing the case is much more complicated than the DOMA case. If any one who reads this can offer a simplified reason for the case to be vacated, have at it.
