On June 26, 2013, the Supreme Court of the USA (SCOTUS) issued its famous 5-4 ruling in the case, United States v. Windsor. The SCOTUS thereby ruled that Section 3 of DOMA was unconstitutional. And, from the undisciplined pundits on both the “left” and the “right” you might conclude all of DOMA was overturned, “gay marriage” is now the law of the land, and the issue is officially dead. Nothing could be further from the truth. Both the “left” and the “right” are guilty of gross exaggeration. The victory for the left was narrow and the loss for the right was shallow.
The SCOTUS did not rule that DOMA is wholly unconstitutional. Rather, they ruled that only Section 3 of DOMA is unconstitutional. The bulk of DOMA (Sections 1 and 2) survived and remains in force. The overturned portion (Section 3) only dealt with the recognition of strictly traditional marriage for the purpose of extending Federal benefits to couples. In other words, if one state recognizes as a marriage something that other states do not, the "marriages" of that one state will not be ignored by the Federal Government with respect to giving Federal benefits to married couples. The SCOTUS ruling had zero effect on the individual state laws regarding “gay marriage.” None of the laws of the 50 states were modified or overturned. There are still 38 states that legally do not recognize “gay marriage” and 12 that do. Contrary to popular punditry, this is unchanged.
Not only was DOMA not overturned, in its central text and spirit it is both Constitutional and written in proper respect of power of the States and the 10th Amendment. The SCOTUS did not challenge that. Simply, DOMA declares each State’s individual Constitutional sovereignty with regards to this particular issue. Under DOMA, if one state chooses to recognize an unusual relationship as a marriage, all other states can’t be forced to do so. Individual state recognition is within the authority of that state and its people, period. For example, imagine if Utah decided to recognize “polygamous marriages.” Would it be reasonable that all other 49 states should be forced to do so just because the people of Utah did? That is the epitome of “the tail wagging the dog.” When you truly analyze it, DOMA is good bipartisan legislation and sadly necessary in this age of judicial activism.
And, regarding judicial activism, the SCOTUS ruling is what is truly shameful. It is yet another example of an activist Judicial branch engaging in writing law without respect to the will and the governance of the people, and with zero authority or accountability in doing so. In other words, five people who were not elected wrote law demanding that our Federal tax dollars be given to couples married nontraditionally without a single vote by the electorate or a single piece of legislation passed by our elected representatives. Citizens should not be forced to fund activities through taxes without proper representation. So much for “government by the people, for the people.” This is government by the few elite at the imposition of the people. In other words, this is oligarchy not Constitutional democracy.
Another reason this ruling is shameful is that it is yet another step in the continued erosion of the Constitutional power of the States and the people. The “right to marry” is nowhere in the Constitution. But, the power of the States and their people explicitly is. In fact, the final and conclusive Amendment in the Bill of Rights (the 10th Amendment to the Constitution) reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, if the Constitution does not explicitly delegate power from the States to the Federal Government (including the Judicial, Executive and Legislative branches), then that power is reserved for the States and the people. Supreme Constitutional power rests with the States and not the Federal Government. The list of what has been constitutionally delegated is pretty short.
The Constitution was drafted in the spirit of Federalism, which was the guiding philosophy of our Founders and Forefathers. Federalism demands decentralization of power in order to avoid an abusive and intrusive central government. This was precisely why the colonies rebelled against its King resulting in our Revolutionary War, which birthed our nation. Federalism is the only way to preserve American freedom. The more powerful centralized government becomes, the more the power/freedom of the States and the people is weakened. There is an inverse correlation between the power of the Federal Government and the power of the States and the people. Sadly, we can see this more clearly today in America than ever before. Constitutional provisions about the Federal Government’s power are primarily negative in nature. And, Constitutional provisions about States’ powers are primarily positive in nature.
Not only does each state have all authority and power to not recognize “gay marriage,” each state has all power and authority to not even recognize any marriage, including traditional marriage. A state can write laws that pay no respect to marriage at all. And, if one state chooses to recognize certain relationships as marriage that other states have not recognized, so be it. Those relationships in that state can there be recognized. But, they can’t encroach upon the sovereignty and self-governance of another state and its people. If people want their relationship recognized as a marriage, they can freely live in a state that does so. And, if they live in a state that does not recognize it, they have the freedom to move to a state that does. That is one of the many beauties of Federalism.
However, in some limited respects, I can see some merit in the narrow conclusion of the SCOTUS. As I outlined in my post on marriage (Marriage - A Matter of Faith and Flesh), this issue does not need to be determined and fought on a national level. The Federal Government should have never extended preferential financial benefits to married couples to begin with. The Federal Government should never be engaged in social engineering to any degree. Such power was not delegated by the Constitution to the Federal Government, and thereby it is reserved for the States and the people. If a homosexual couple wish to have the ability for hospital visitation or inheritance, there is no harm in extending such abilities through narrowly crafted legislation, even on a national level. And, this can be done rather easily without even approaching the well-established definition of marriage. And, in this light, I understand why the SCOTUS reasoned on the merits of the law in the way that they did. However, the dissenting opinion was much more respecting of the Constitution, which is what the SCOTUS Justices gave oath to protect. In this respect, the five Justices behind the majority opinion in this ruling breached their oath of office and subverted the Constitution, the States and the people.
All of that said, this ruling offers us a unique moment to respond in faith. For the Christian who fears God and reveres His word, I would extend to you encouragement. This issue is not done and settled by any stretch of imagination. If it is your desire to maintain the sovereignty of the 38 states that currently do not recognize “gay marriage,” then that is still within your ability to influence. First of all, pray. Pray for all 50 states, the Federal government and the SCOTUS. Pray for revival and awakening in this spiritually blinded nation. Pray for homosexuals that they will realize the fullest of rights, identities, powers and recognitions that can only be found in complete surrender to Jesus Christ. Second, be a beacon of light, hope and grace in the communities in which you live. Don’t be defeated, bitter and unloving to anyone. May your words be overflowing with the grace and the love of God. May those around you in the midst of darkness look at you and see radiant and loving light. May others see a life of distinction that pays little respect to sinful emotions, but extends unconditional love towards those that do. Thirdly, vote. 1 Corinthians 10:31 says, “So, whether you eat or drink, or whatever you do, do all to the glory of God.” And, “whatever” includes voting. This is how you exercise true democracy by holding accountable those lawmakers and judges who ignore the will of the people and subvert our Constitution.
Lastly, to my Christian friends who choose to rejoice over this ruling, the rest of us love you. And, it is our sincere prayer that we all look at every issue primarily through the eyes of God and not through the eyes of man. As with all issues, this issue is spiritual first and political last. Therefore, in God’s Kingdom, where we hold our ultimate citizenship, the King should always trump human politics and emotions in both our thinking and our actions. In fact, God does not play or respect politics. He is the King of Kings, and not democratically elected. And, our King has spoken. It is not too late to surrender cultural blinders. One thing that is clear from the SCOTUS ruling is that the end is ever nearer. The King is returning soon. Will He find us all faithful to Him and Him alone?