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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Europe's elections show why liberals should avoid fatalism

France, Germany and the Netherlands suggest there is nothing inevitable about the right's advance.

Humans are unavoidably pattern-seeking creatures. We give meaning to disparate events where little or none may exist. So it is with Brexit and Donald Trump. The proximity of these results led to declarations of liberalism's demise. After decades of progress, the tide was said to have unavoidably turned.

Every election is now treated as another round in the great duel between libralism and populism. In the Netherlands, the perennial nativist Geert Wilders was gifted outsize attention in the belief that he could surf the Brexit-Trump wave to victory. Yet far from triumphing, the Freedom Party finished a distant second, increasing its seats total to 20 (four fewer than in 2010). Wilders' defeat was always more likely than not (and he would have been unable to form a government) but global events gifted him an aura of invincibility.

In France, for several years, Marine Le Pen has been likely to make the final round of the next presidential election. But it was only after Brexit and Trump's election that she was widely seen as a potential victor. As in 2002, the front républicain is likely to defeat the Front National. The winner, however, will not be a conservative but a liberal. According to the post-Trump narrative, Emmanuel Macron's rise should have been impossible. But his surge (albeit one that has left him tied with Le Pen in the first round) suggests liberalism is in better health than suggested.

In Germany, where the far-right Alternative für Deutschland was said to be remorselessly advancing, politics is returning to traditional two-party combat. The election of Martin Schulz has transformed the SPD's fortunes to the point where it could form the next government. As some Labour MPs resign themselves to perpeutal opposition, they could be forgiven for noting what a difference a new leader can make.

2016 will be forever remembered as the year of Brexit and Trump. Yet both events could conceivably have happened in liberalism's supposed heyday. The UK has long been the EU's most reluctant member and, having not joined the euro or the Schengen Zone, already had one foot outside the door. In the US, the conditions for the election of a Trump-like figure have been in place for decades. For all this, Leave only narrowly won and Hillary Clinton won three million more votes than her opponent. Liberalism is neither as weak as it is now thought, nor as strong as it was once thought.

George Eaton is political editor of the New Statesman.