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DOMA Ruling as Misdirection: The Gift was to States Rights Advocates, not the LGBT Community


Last week, three landmark cases at the Supreme Court (SCOTUS) were delivered. The timing of the rulings was all but coincidental.  The easy interpretation that will follow this week is that the Republican-stacked high court is banking that good news for gay Americans will obliterate the bad news for Americans of color. While that may be true, how the SCOTUS approached their ruling on DOMA and the ruling on Prop 8 opens the door for protection of other issues under “states’ rights”  that Americans may find far, far more disturbing.

Last week the SCOTUS dropped two bomb-shell rulings in succession. First came the word that they had gutted a key provision of the Civil Rights Act of 1965.

On its heels followed the news that the highest Court struck down a key provision of the 1996 Defense of Marriage Act (DOMA), the federal law banning federal spousal rights to same-sex couples. The federal government could not withhold spousal rights to those whom states granted the right to marry.

At the same time, the SCOTUS also ruled that the private parties representing California’s Proposition 8 that banned gay marriage in the state had no standing to represent it before the high court.

Before the outrage could build about stripping the Federal government’s ability to interdict in abusive voting legislation designed to suppress minority turn-out, in came the the LGBT community’s long-awaited day in court that continued the wave of social justice that has been rolling  since President Obama ended the military’s Don’t Ask, Don’t Tell policy and states around the country have increasingly voted in favor of same-sex unions.

All agencies of government, and all political parties, are media savvy enough to know how to manipulate the news “spin” cycle.  The bone-gnawing cur that the alleged “Fourth Estate” has become runs on get-it-first, not get-it-right. There are few in the mainstream media who will step back and look at the bigger picture, at least until they have wrought every last Viagra ad out of each separate spin cycle of news.

When major events happen back-to-back, that pin-head-sized pedestal that the media reserves for the “top story” usually means that the new story knocks off the current one, particularly if it is bigger.  Such was the case this week.

While there are LGBT Americans of all races, creeds, and colors, there are also a large and growing community of LGBT Americans who are fiscal and social conservatives.

“[A]  growing sector of the gay community sees itself as supporters of and members of the Republican Party… They are not a fringe group and should not be dismissed as such. In fact, the gay conservative movement is growing at a fast pace, garnering a great deal of mainstream media attention in the process…” [1]

The one place that the LGBT community on either side of the political aisle seems to agree upon is civil unions, and the right of partners to care for each other, and receive the same spousal benefits as straight couples who so commit.

For minorities, particularly African-Americans, though? According to one key poll, they voted Obama 94%. Romney? 0%. [2]

Eventually, as the excitement dies down over downing DOMA, that reality will finally hit this week’s news cycle.

What we all missed though, in the mercurial math of Chief Justice John Roberts, was a better reading of what the court did in its ruling on DOMA. In the majority opinion, Justice Kennedy writes:

“DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment,” Justice Anthony Kennedy wrote for the majority. “The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.” [3]

The court did not strike down the entirety of DOMA at the federal level on the grounds that it was morally wrong, or that it violated the civil rights of all Americans, which it does.

The SCOTUS framed their gutting of DOMA as a states’ rights issue, which is a key tenet of Republican and Libertarian political dogma.

Further, Proposition 8 wasn’t turned away from the court because it was morally wrong, or that it violated Californians’ rights. It was turned away because the now liberal-leaning state government in the Golden State elected not to defend it before the high court, and the group bringing suit was told that they had no standing with the court.  That door swings both ways though.  Will liberal leaning groups challenging law now need a state to champion their cause for lack of standing with the court?

The structure of the ruling, further, has more troubling consequences.  The Roberts SCOTUS is, even with its recent additions of more liberal-leaning justices, very much influenced by the conservative States’ Rights dogma.

The SCOTUS under Earl Warren (1953-1969) and Berger (1969-1986) recognized the Federal Goverment’s role in acting as an agent for all Americans, and that certain functions of good governance beyond interstate commerce and national defense could not be left to the inconsistency of the states.

We have a Federal Bureau of Investigation (FBI) because crimes and patterns of crime happen that states themselves cannot coordinate and interdict.  We have government agencies that coordinate the best uses of land for the food that we grow after mismanagement of some states nearly destroyed our ability to produce the bounty that is the envy of the world.  We inspect the food that we eat, and the medicines that we take because the inconsistency of leaving that job to the states allows a real danger to every American consuming them.

States’ rights, to anyone who has fought for civil rights since the days leading up to the Civil War, has been primarily used as a means of preserving the status quo in the political disenfranchisement of minorities, and the upholding of the status quo of a white, protestant America whose majority is evaporating by the day.

While the court’s ruling on DOMA was a “win” for the LGBT community without question, once the partying and rapid marrying in states where it is now allowed dies down, what the highest court in the land really upheld was  states’ rights, a century-and-a-half old policy of social and political discrimination  and disenfranchisement.

In effect, the Roberts court just set a lot of precedent to reverse the Warren Court’s landmark civil rights cases in the 1960s, and open the door to further dismantle federal authority over all kinds of other areas where the federal government provides regulatory protection and consistency in regulation.

Given the last four years of redistricting and legislation designed to disenfranchise minority voters in states which weren’t even on the list that the high court approved in the mid-1960s, the Roberts Court’s action was unconscionable.

The Attorney General of the United States has had to intervene in those most discriminatory states more than 70 times since 2000. Rather than less legislation, the Court should have expanded the Voting Rights Act to cover Red-leaning states with similar minority-targeted voter suppression schemes that have arisen since the 2010 Red tide of Teahadis infiltrating state houses in mid-America and the South.

The LGBT ruling on States Rights also establishes precedent to allow protection to other agenda-specific groups under the umbrella of the inconsistency of state laws.  The NRA has found states’ rights a popular blind from which to take shots at broader federal law. Certainly other groups will be able to cite the court’s DOMA verdict as a precedent for their specific issues to be handed back to the states.

The DOMA/Prop 8 rulings open the pandora’s box of other areas where a conservative United States Congress can dismantle chunks of the federal government, write law that is in violation of the United States Constitution’s established civil rights for all Americans, and then leave it to the states to enact a hodge-podge of laws that provide inconsistent protection to all Americans based on the social and cultural moires of a particular state.

The simple read is that a black citizen may be completely equal in California, they may be totally disenfranchised in Texas or Mississippi, which will be true given the Court’s posture last week. Beyond that, though, this application of states rights allows for future where clean air and water may be something you get in California, with strong laws, and something under-regulated or non-existent in Gulf states like Texas or Louisiana, and big coal states like West Virginia.

The SCOTUS is the balance between state and federal power.  The Roberts Court’s obsession with states rights suggests that white power, and the redesign of America by the 1% will ultimately be the big winners of last week, not the LGBT community and certainly not people of color.

My shiny two.

About Brian Ross

Brian Ross is a writer, screenwriter, political satirist, documentarian, filmmaker and chef. Ad hoc, ad loc, quid pro quo... so little time. So much to know!

2 comments on “DOMA Ruling as Misdirection: The Gift was to States Rights Advocates, not the LGBT Community

  1. I would be far more receptive to critiques and other pieces like this if there weren’t such a zeal for trouncing the press. FFS the folks at Scotusblog also got it somewhat wrong. I wish people would just backpedal a bit and stop the gratuitous media-bashing. You don’t need it to make your point.

    • Brian Ross
      June 30, 2013

      It’s not gratuitous, and, as a member of the media, I can point out that our shortcomings in providing you with better news require major companies to go back to the practice of promoting savvy people to the point of punditry who can provide big picture focus. Sadly knowledgeable people like Candy Crowley have way too many off-camera masters who have a fear of questioning conservative guests and/or their agenda.

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