I’m No Legal Scholar….

redshoeI get all kinds of anxious and nervous when people get worked up about something. I get nervous for them. I’m often the gal who’s waiting for the other shoe to drop. Yesterday was no different.

I wanted to be gleeful upon hearing that the US Supreme Court effectively struck down The Defense of Marriage Act, but I just couldn’t be, distracted as I was by waiting for that other shoe and all. While the decision in United States v. Windsor is certainly a victory for Ms. Windsor, both a financial and, I’m quite certain, an emotional one, what it is not is a victory for all gay people residing in these United States. It doesn’t, for example, allow my gay friends who wish to be considered legally married here in the great state of New Jersey to be granted that distinction. (New Jersey recognizes Civil Union. It does not recognize same-sex marriage.)

Because Ms. Windsor and her long-time partner, Thea Spayer, were legally married in Ontario and because they were residents of New York, where their marriage was also legally recognized, Ms. Windsor, says the Supreme Court, does not, indeed, owe over $300,000 in taxes levied by the Internal Revenue Service. She, Ms. Windsor, based on her legally recognized status as a spouse, is exempt from paying these taxes on property that came to her upon her spouse’s death — just as any heterosexual spouse would be.

Sure, it’s a victory. Of sorts. Does it spell the demise of the same-sex marriage argument? It does not. What this decision essentially does is uphold New York State law. It does not grant marriage equality to folks who live in States where laws denying such equality currently exist. It does not compel any State to recognize same-sex marriage. It simply says that the State in which Ms. Windsor and Ms. Thayer resided at the time of Ms. Thayer’s death recognized their legal status as married people and as such Ms. Windsor has the legal right to invoke the estate tax exemption for surviving spouses — the one that the IRS was attempting to deny her.

Here is where it gets tricky for me (and for those Justices who dissented) — because Ms. Windsor’s attorneys chose to argue this case based on the Fifth Amendment, which states, among other things, that “no person shall be… denied of life, liberty, or property, without due process of law…”, the case was deemed to have standing — and, in the majority opinion, merit. While I am happy to see The Defense of Marriage Act challenged and, happier still, to see it deemed unconstitutional, this decision seems to allow the laws of an individual State to take precedence over Federal law. I don’t know that this is a good thing.

If I’m not mistaken, I think we fought a little thing called The American Civil War over just this sort of thing. You know, South Carolina said that they could secede from the Union, the Union felt otherwise. Some South Carolinians holed up in a place called Fort Sumpter — to prove their point. You probably know the rest.

I’m not suggesting that those of us who support marriage equality should take up arms and occupy some strategic federal stronghold. What I am suggesting, however, is that there is surely more work to be done. On a Federal level.

In striking down the almost indefensible Defense of Marriage Act, the Court did what they could do. It is their job to determine the constitutionality of laws when they are challenged. Because the Court cannot render an opinion that it is not asked to render, “Ah! There’s the rub!” As I see it, what really needs to happen here is that there needs to be a law that the court can uphold, rather than one that it can strike down (in whole or in part). Because the Court cannot make laws, there must be a willingness on a Federal level to create and codify a law which can be upheld by the language of the Fourteenth Amendment — particularly the language that guarantees to our citizenry “equal justice under law”.

State laws just aren’t enough. First of all, it will be too time consuming to challenge individual State laws on a Federal level. And I worry that the precedent set in United States v. Windsor will give State laws more power in this area than they either deserve or have a right to expect. Also, there are any number of states (I think it’s 37) where there are no laws regarding same-sex marriage at all. So, effectively, there is nothing TO challenge.

Regardless of how any individual (or individual state) feels about homosexuality in general or gay marriage in particular, what folks need to understand is this idea of “equal justice under law”. It’s important. What is also important is the idea that if The Supreme Court begins to apply the same logic in deciding other issues as it did where United States v. Windsor is concerned, we might as well return to The Articles of Confederation. If States can individually exclude any one person or group from a legal status enjoyed by their neighbor, a member of another group, and the Federal government allows this — well, what’s to stop any State from deciding that childhood ends at the age of 8, which would effectively dismantle child labor laws. Nothing. You see the slippery slope here, don’t you?

I’m no legal scholar, but it seems fairly straightforward even to little old me. We need a Federal law here, folks. I’ll be pretty excited when that happens. You might even catch me looking heavenward to express my gratitude, rather than looking ominously skyward for the dropping of that other shoe.

photo credit: red shoe

4 thoughts on “I’m No Legal Scholar….

  1. Ya know what I think? I don’t want any state spending one more God Damn cent on upholding their Defense of Marriage laws. Not one more cent. Let’s just cut-to-the-chase and pass same-sex marriage as legal and get on with more pressing issues, and stop allowing politicians to garner campaign funds with this topic.


  2. beverlydiehl says:

    I’m glad they upheld the overturning of Prop 8 here in Cali, and called DOMA unconstitutional, but I agree. Long long way to go.

    And in the meantime, those who don’t believe that a woman deserves a greater say over whether or not her womb should be occupied are marching on, in Ohio, and in Texas, and so many other places.


    • javaj240 says:

      Just another example of how Supreme Court decisions can be chipped away at — particularly when individual States search for the loopholes. It’s funny, Justice Blackmun, who wrote the majority opinion in Roe v Wade, foresaw how advances in medicine could, possibly, change the decision. He warned future Justices to keep in mind that his Court had pointedly NOT addressed the science in making it’s decision — they had, instead, weighed whether or not any State had jurisdiction in what, ultimately, were private matters. Once scientific advances were made, ones that seemed to indicate that a fetus had “life” earlier than anyone had ever thought possible, well,of course, that opened the door to whether or not the unborn could/should be granted “equal protection under the law”. Once this door was opened, States began to make these arguments — filing things like amicus briefs on behalf of the unborn — and some courts in some States granted such standing. Ultimately, as Blackmun warned, precedent no longer mattered — not in the face of scientific advances. States were free to pass more and more restrictive abortion legislation. Abortion proponents need a better argument — and they know it. They also need a court sympathetic to the living.


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