First, I would like to applaud Mr. Estes for his intelligent opinion piece in the July 5 issue of this newspaper. His article responded to Richard Brown’s column cheering the US Supreme Court’s complicated position on California’s Proposition 8 and its rejection of the federal Defense of Marriage Act (DOMA). These articles and the various courts’ decisions prove that good people can differ on important issues.
Surely, this is an emotional issue for many. The quest for gay Americans to marry grows out of the AIDS epidemic of the 1980s when lifelong partners could not visit loved ones in hospitals nor have a voice in funeral arrangements due to a lack of legal recognition of their relationship.
Congress will be able to pass a law similar to DOMA with a recent USA Today poll reporting that 55 percent of Americans say that same-sex marriages should be legally recognized. The times are changing, and all it takes is for a family member to declare they are gay.
An independent judiciary is a hallmark of U.S. democracy and legitimate government. Our system of checks and balances divides power among the legislative, executive, and judicial. I am thankful that a majority is kept in check by judicial review of laws that protect the minority. This is a key reason for the first 10 amendments to the Constitution so the majority (sometimes reflected in Congress) cannot deny basic rights to a political, racial or social minority. The emergence of judicial review in Marbury v. Madison is part of the evolution of the Constitution and the powers of the three branches and is widely accepted by conservative and liberal constitutional scholars.
CA’s Proposition 8 limited state recognized marriages to heterosexual couples. The U.S. Supreme Court’s ruling in this case is based on a technicality about who has standing to challenge lower courts’ decisions, and Prop. 8’s demise will stand. Suffice to say that gay marriages are still banned in 35 states, and the fight for marriage equality will be a long one.
The U.S. Supreme Court’s defeat of DOMA will aid gays in this fight, but states’ rights enable traditionalists to prolong the ban on gay marriages.
Finally, we seem to label the court “activist” or “partisan” when it hands down a decision different from our political or ethical preferences. I’m guilty of this, and I was disappointed in one of the court’s final rulings of this term when it struck down an enforcement tool of the 1965 Voting Rights Act used to prevent states’ discouraging minority voting. Oops, another of those pesky 5-4 decisions and a vote for states’ rights.
Mixed decisions indeed from an independent judiciary.