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 freelance writer based in the US who has formerly worked for the Guardian and the New Statesman. He tweets @NickyWoolf.

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Forget gaining £350m a week, Brexit would cost the UK £300m a week

Figures from the government's own Office for Budget Responsibility reveal the negative economic impact Brexit would have. 

Even now, there are some who persist in claiming that Boris Johnson's use of the £350m a week figure was accurate. The UK's gross, as opposed to net EU contribution, is precisely this large, they say. Yet this ignores that Britain's annual rebate (which reduced its overall 2016 contribution to £252m a week) is not "returned" by Brussels but, rather, never leaves Britain to begin with. 

Then there is the £4.1bn that the government received from the EU in public funding, and the £1.5bn allocated directly to British organisations. Fine, the Leavers say, the latter could be better managed by the UK after Brexit (with more for the NHS and less for agriculture).

But this entire discussion ignores that EU withdrawal is set to leave the UK with less, rather than more, to spend. As Carl Emmerson, the deputy director of the Institute for Fiscal Studies, notes in a letter in today's Times: "The bigger picture is that the forecast health of the public finances was downgraded by £15bn per year - or almost £300m per week - as a direct result of the Brexit vote. Not only will we not regain control of £350m weekly as a result of Brexit, we are likely to make a net fiscal loss from it. Those are the numbers and forecasts which the government has adopted. It is perhaps surprising that members of the government are suggesting rather different figures."

The Office for Budget Responsibility forecasts, to which Emmerson refers, are shown below (the £15bn figure appearing in the 2020/21 column).

Some on the right contend that a blitz of tax cuts and deregulation following Brexit would unleash  higher growth. But aside from the deleterious economic and social consequences that could result, there is, as I noted yesterday, no majority in parliament or in the country for this course. 

George Eaton is political editor of the New Statesman.