DOMA and Proposition 8: The perils and benefits of an activist Supreme Court

The Supreme Court rulings on the Defence of Marriage Act and Proposition 8 stand in stark contrast to the day before, and show a split activist court.

The Supreme Court giveth, the Supreme Court taketh away. Just a day after a landmark ruling that rolled the civil rights movement back several decades on race, two more rulings were handed down by that most august of bodies today that roll it several decades forward on gender. One, by denying the right to appeal of a group of supporters of California's Proposition 8, effectively legalised gay marriage in the US's most populous state.

The other, a much more direct – and therefore important – ruling, found a central clause of the hated Defence Of Marriage Act (DOMA), which denied gay couples equal protection under the law, unconstitutional. So while the day before was a bad day for black Americans, yesterday was a great day for gay Americans.

The one anchovy in the trifle was Justice Antonin Scalia, whose enraged dissenting opinion laid into Justice Kennedy's striking-down of DOMA, and who hinted that, while the Court had chosen not to directly address the national constitutionality of a ban on gay marriage in any state – dismissing the Proposition 8 case and sending it back to the 9th Circuit court of California's decision instead – it is inevitable now that one day the Court will take a similar case on merit at some point in the future. He went on grumpily to say that Kennedy was acting with “real cheek” by saying that the constitutionality of gay marriage wasn't up in front of the court yet.

This kind of judicial activism infuriated Scalia. “We have no power to decide this case,” he raged. “And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.” This was pretty ironic, actually; just the previous day, Scalia had no such qualms about judicial activism when the court was addressing a conservative issue: he voted enthusiastically to gut the Voting Rights Act – which had been reaffirmed in Congress in 2006 by a huge majority.

It would be wrong to say that hypocrisy about juducial activism is unique to the conservatives on the bench. Justice Ginsberg's anguished dissenting opinion on striking down the Voting Rights Act is in contrast to her full-throated support of Justice Kennedy's majority opinion on DOMA; though she, along with Scalia, voted to send Proposition 8 back to California rather than address its merits there and then it is probably that had they debated the issue she and Scalia would be on different sides. Justice Kennedy is, as usual, the tipping-point between conservatives and liberals on the court – he joined Justice Roberts in voting to strike down the VRA. He is therefore probably the most important Justice.

But Scalia's prediction is probably also correct. The majority opinion by Kennedy on DOMA contains language that will allow for plenty of challenges to the constitutionality of marriage inequality down the line. He said, for example, that DOMA constituted nothing less than a “deprivation of the equal liberty of persons that is protected by the Fifth Amendment, and also that it “humiliates tens of thousands of children now being raised by same-sex couples,” and bases an argument around giving “dignity” to same-sex families. All of these give immediate legal precedent for challenges to state gay-marriage bans. So while this wasn't a day of final victory on marriage equality, it was decisive nonetheless. Sometimes an activist court isn't so bad.

San Francisco's City Hall flies the rainbow flag. Photograph: Getty Images

Nicky Woolf is a writer for the Guardian based in the US. He tweets @NickyWoolf.

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Emmanuel Macron offers Theresa May no comfort on Brexit

The French presidential candidate warned that he would not accept "any caveat or any waver" at a press briefing in London.

Emmanuel Macron, the new wunderkind of French politics, has brought his presidential campaign to London. The current favourite to succeed François Hollande has a natural electoral incentive to do so. London is home to 300,000 French voters, making it by France's sixth largest city by one count (Macron will address 3,000 people at a Westminster rally tonight). But the telegenic centrist also took the time to meet Theresa May and Philip Hammond and to hold a press briefing.

If May hoped that her invitation would help soften Macron's Brexit stance (the Prime Minister has refused to engage with his rival Marine Le Pen), she will have been left disappointed. Outside No.10, Macron declared that he hoped to attract "banks, talents, researchers, academics" away from the UK to France (a remark reminiscent of David Cameron's vow to "roll out the red carpet" for those fleeing Hollande). 

At the briefing at Westminster's Central Hall, Macron quipped: "The best trade agreement for Britain ... is called membership of the EU". With May determined to deliver Brexit, he suggested that the UK would have to settle for a Canadian-style deal, an outcome that would radically reduce the UK's market access. Macron emphasised that he took a a "classical, orthodox" view of the EU, regarding the "four freedoms" (of people, capital, goods and services) as indivisible. Were Britain to seek continued financial passporting, the former banker said, it would have to make a significant budget "contribution" and accept continued immigration. "The execution of Brexit has to be compliant with our interests and the European interest".

The 39-year-old avoided a nationalistic tone ("my perspective is not to say France, France, France") in favour of a "coordinated European approach" but was unambiguous: "I don't want to accept any caveat or any waver to what makes the single market and the EU." Were the UK, as expected, to seek a transitional arrangement, it would have to accept the continued jurisdiction of the European Court of Justice.

Elsewhere, Macron insisted that his liberal economic stance was not an obstacle to his election. It would be fitting, he said, if the traditionally "contrarian" France embraced globalisation just as its counterparts were rejecting it. "In the current environment, if you're shy, you're dead," he declared. With his emotional, straight-talking approach (one derided by some as intellectually threadbare), Macron is seeking to beat the populists at their own game.

But his views on Brexit may yet prove academic. A poll published today showed him trailing centre-right candidate François Fillon (by 20-17) having fallen five points since his denunciation of French colonialism. Macron's novelty is both a strength and a weakness. With no established base (he founded his own party En Marche!), he is vulnerable to small swings in the public mood. If Macron does lose, it will not be for want of confidence. But there are unmistakable signs that his forward march has been halted. 

George Eaton is political editor of the New Statesman.