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SCOTUS in June, Part 2 (DOMA Decision)

My_Trusty_GavelWhen I heard that SCOTUS had overturned the Defense of Marriage Act (DOMA) I assumed it was based on the same arguments as the VRA decision: federal government overstepping its authority into issues that are rightly left to the states per the 10th Amendment.  Not so.  DOMA never prohibited states from enacting legislation legalizing or recognizing gay marriage.  It didn’t overstep the 10th Amendment.
The basic premise of the case is this:  Two women married in Canada and lived in New York.  One of the women died. Under DOMA their marriage wasn’t federally recognized, so the survivor had to pay estate taxes, instead of being completely exempt as a surviving spouse.  She contended that this was a denial of due process and equal protection under the law.  If traditional marriages get it, so should she.  I’ve seen this coming for years, and SCOTUS agreed with her.
The majority of the Court based its decision on violations of the Fifth Amendment.  The Fifth Amendment says:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In this case the “nor be deprived of…property, without due process of law” is what applies.  The Court stated that the surviving “spouse” was deprived of money due to DOMA.  They recognized that Congress can “make determinations that bear on marital rights and privileges”, but that DOMA had an “unusual deviation” from the “usual tradition of recognizing and accepting state definitions of marriage.”  The fact that it was done to settle and simplify questions in many varied areas of federal law was never acknowledged.  In the majority’s mind it was done for no more reason than to “demean”.
And that was the crux of most of their decision: condemning anyone who didn’t support the “dignity” of gay marriage (a phrase they used ad nauseum).  Justice Scalia said it best in the dissent:  

…to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements …To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement.  To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” “injure,” “degrade,” “demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual.  All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence – indeed, had been unquestioned in virtually all societies for virtually all of human history.  It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

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Suzanne Olden

Suzanne Reisig Olden is a Catholic Christian, Conservative, married mother of two, who loves God, family and country in that order. She lives northwest of Baltimore, in Carroll County, Maryland. She graduated from Villa Julie College/Stevenson University with a BS in Paralegal Studies and works as a paralegal for a franchise company, specializing in franchise law and intellectual property. Originally from Baltimore, and after many moves, she came home to raise her son and daughter, now high school and college aged, in her home state. Suzanne also writes for The Firebreathing Conservative website ( and hopes you'll come visit there as well for even more discussion of conservative issues.