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Democratic processes just took it on the chin

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The U.S. Supreme Court.

The U.S. Supreme Court.

Alex Brandon, Associated Press, Pablo Martinez Monsivais, Associated Press

The results may not have been surprising to the experts. But to anyone who values the democratic process, Wednesday's Supreme Court decisions were disappointing.

In anticipating the release of decisions regarding how a state constitution (California's Propostion 8) and a federal statute (Defense of Marriage Act) defined marriage as between one man and one women, many careful watchers of the Supreme Court suspected that Section 3 of DOMA would fail and that the court would deflect ruling directly on the constitutionality of Proposition 8 because of jurisdictional defects.

But just because months of prognostication prepared the public for these precise results, this predicted outcome should not erase the utter frustration of those who value principled democratic processes over judicial activism.

Justice Anthony Kennedy's 5-4 decision in United States v. Windsor, the DOMA case, found that the federal definition of marriage as between one man and one woman, which is applicable to more than 1,000 federal laws, served no purpose other than to disparage and injure those same-sex couples to whom a state might confer the benefits of marriage.

Set aside the fact that when DOMA passed in 1996 no state (indeed, no nation) recognized same-sex marriage and therefore Congress was not taking away a right that any legislature had ever granted. Indeed, set aside the fact that there is a well-founded federal interest in maintaining uniformity within federal law.

Consider that within our system of separated powers, regardless of the clarity of their reasoning, five justices can overturn popularly enacted bipartisan legislation that cleared the U.S. Senate 85–14 the U.S. House of Representatives by 342–67.

By contrast, Chief Justice John Roberts' 5-4 decision in Hollingsworth v. Perry, the Proposition 8 case, could be considered a model of judicial restraint. The majority of justices resisted the temptation to make a sweeping pronouncement on the constitutionality of California's definition of marriage because (according to Roberts) there was no live case or controversy before the Supreme Court to decide.

In legal terms, the parties mounting the appeal lacked what the courts call "standing." The U.S. Constitution limits the federal courts to ruling only on a live dispute between parties who have more than a generalized interest in the outcome of a case.

But in this challenge to California's traditional definition of marriage by two same-sex couples, the state constitutional officers sworn to defend the state's constitution somehow didn't bother to defend their constitution at the district court and didn't appeal the ruling that enjoined their enforcement of that constitution. The proponents of Proposition 8 who intervened to do what state officers should have done had, according to Roberts, only a generalized interest in the outcome and therefore lacked the requisite standing to appeal. Consequently, the uncontested ruling of a federal district court judge in California now stands as law, at least for the actual litigants in the case (although a host of unresolved jurisdictional questions remain).

So ironically, by showing appropriate judicial restraint in the appeal of the Proposition 8 case, the Supreme Court has let stand an activist lower court ruling with unprecedented reasoning for the constitutionality of same-sex marriage.

Consider what this outcome says to the more than 7 million voters in California who, in a high turnout election, sought to preserve the important public benefits associated with biologically intact families. Although that majority of citizens met every procedural and substantive requirement of their state's constitution to peacefully amend their constitution to protect the proven ideal of marriage between a man and a woman as the best way to nurture children, it was the recalcitrance of a few agenda-driven state officials and one activist federal judge that effectively undermined their aims.

Taken together, Wednesday's decisions do not create any national constitutional standard for marriage, and they would seem to leave most of the ongoing skirmishes over the future of marriage to the states and to the particular facts emerging in the inevitable continuing litigation of these issues. But make no mistake about it, when one considers how a handful of individuals managed to derail major social policy decisions made by both federal representative government and popular state initiative, normal democratic processes just took it on the chin.