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Column: Mike Colona – “It’s not the end of the world as we know it”

State sovereignty and equal protection advocates should be thrilled. Both concepts are alive and well thanks to the Roberts Court.

Let’s take state sovereignty as an issue that rose like a phoenix in United States v. Windsor. Citing my small-town, country lawyer roots, I try and cut through all the fluffy legalese and craft a message or analysis that I could deliver to friends or constituents from someplace such as the town square gazebo in Edina, Mo.

Rep. Mike Colona, D-St. Louis
Rep. Mike Colona, D-St. Louis

Every lawyer and every politician should know that the definition of marriage has been the almost exclusive jurisdiction of the states. Some states have residency requirements, some have waiting periods, some have fees and others don’t. The only time the Supreme Court has stepped in to limit a state’s right to define marriage is when a state statute defines marriage in a way that violates another Constitutional principle, like equal protection — a Federal Constitutional principle that basically contends that one group of people can not be treated differently by statute than other groups, such was the case in the prohibition of interracial marriage.

Our Supreme Court in U.S. v. Windsor started out with the basic premise that states define marriage. If New York wants to allow same sex couples to marry, then that’s their prerogative.

Acknowledging that any state definition is limited by the principle of equal protection, the Court then looks to see if the questioned law — ironically in this case, a Federal Law: DOMA — violates the constitutional principle of equal protection. Simply put, Justice Kennedy said it does.

In recap: 1) States, not the federal government, retain almost exclusive jurisdiction in defining marriage within their sovereign borders; and 2) A federal law that treats one group of citizens (heterosexual couples) who have had marriage rights lawfully bestowed upon them in one state cannot treat another group of citizens (LGBT couples) who have also had marriage rights lawfully bestowed upon them in another state — differently violates the principle of equal protection. Put another way, you can’t treat legally married gays or straights differently when it comes to granting federal marriage benefits. U.S. v. Windsor reminds us that states define marriage — and federal governmental power to pass legislation that infringes on that right is limited, that’s right I said limited — by the concept of equal protection.

How about the California Proposition 8 question?

Folks who despise judicial activism should be thrilled by the ruling. Law school 101: here the conservative principles of Stare Decisis and precedent apply.

  • Stare Decisis: What is the present rule that should be applied?
  • Precedent: How has that rule been applied by Courts in the past and how should it be consistently applied to the present scenario.
  • This thing called standing: A principle that only certain people have the legal right to sue in certain circumstances — in the Proposition 8 case is the established rule of law — our “Stare Decisis.”

Precedent would dictate that in this particular fact scenario, only certain plaintiffs have standing to sue. In sum, the Supreme Court followed conservative legal principles to tell the plaintiffs “Sorry, in this particular set of facts, only certain “people” have the right to sue. And it is not you. Therefore, case dismissed.”

That’s why some of the perceived most liberal Justices joined some of the perceived most conservative Justices in not ruling on the merits of the case – they never got there and rightfully dismissed the case since the plaintiffs had no legal right to appeal in the first place.

So, it’s not the end of the world as we know it.

States retain their right to define marriage, the big, bad Federal government can not deny equal protection to citizens legally married in any state and the core conservative principles of Stare Decisis and precedent rule the day.

Yet, we still have many folks — mostly on the right — saying the Court was judicially active, redefined marriage and we now need a constitutional amendment at the Federal level defining marriage. I would suggest to my friends that these people are not true conservatives. After all, true conservatives would leave the definition of marriage to the States — like the Court did — and would also support consistent application of a rule of law through Stare Decisis and precedent — like the Court did. No my friends, I would suggest that these folks are not true conservatives, but members of the religious right who need to explore another constitutional principle: the separation of Church and State. While these folks are entitled to their definition of marriage on a religious level, they have no right to try and impose that religious definition at a state secular level.

To my friends on the right and the left, if we really do want to get a glimpse of the end of the world as we know it, go ahead and allow one sect of Christian religion to define marriage for us, a definition which may just violate the thing we talked about earlier – equal protection (see above).