By Dan Calabrese ——Bio and Archives--October 8, 2014
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As we noted in March 2013, during oral arguments Justice Anthony Kennedy seemed to suggest that he was open to striking down the DOMA provision on federalism grounds alone--that is, on the basis that the federal government is generally obliged to defer to the states on matters of family law. We urged that outcome, but Justice Kennedy did not follow our advice (go figure). He wrote the majority's decision, which also found a violation of "the guarantee of equal protection, as applied to the Federal Government through the Fifth Amendment." Levey writes that "if the conservative Justices--whose four votes would have been sufficient to grant review [and who dissented in Windsor]--knew they could not count on Justice Kennedy and reluctantly chose what they deemed to be the lesser of two evils, it is understandable."
We'd say they probably knew--or at least ascertained with a good degree of certainty--that they could count on Justice Kennedy to vote against them. If a federal ban on same-sex marriage violates equal protection--a big if in our view, but settled law in the Supreme Court's--then there is no fathomable logic by which a state ban does not, especially since the right of equal protection was originally enacted (in the 14th Amendment) as a protection against the states. Thus it is all but certain that if the high court had agreed to hear one or more of the appeals, the outcome would have been the one preferred by the Times, not Levey. Some have speculated that Kennedy himself is equivocal about taking that next step, but consider that in 2013's Hollingsworth v. Perry, in which the court avoided the question for procedural reasons, he wrote the lead dissent. That is, if his view had prevailed, the court would have issued a definitive ruling on the constitutionality of state bans 16 months ago.In the end, I think the best wisdom here comes from my wife, who is looking over my shoulder as I'm writing this (and wants me to hurry up so we can go to lunch!). She expresses that those who want to defend God's design for marriage and life have to realize we can't count on secular political institutions to do that. It's a fallen world and those secular institutions are the power within that fallen world. They're going to do the bidding of the world. That said, of course we should care what the law is, and of course we need to fight for the rights of individuals like bakers and florists who are being forced by their states to choose between catering to gay weddings or being forced out of business. I oppose gay marriage because God opposes it, and I always will, but I know full well that the secular political institutions of the world aren't going to do God's work. God's people have to do that, most of all for the sake of the souls of those who have been deluded into thinking the desires of their flesh are the same as "love" and that they can pick and choose the parts of God's Word they wish to accept - because no one will pay a higher price for that than they will if someone doesn't tell them the truth.
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