On June Wednesday, the Supreme Court of the United States declared Section 3 of the Defense of Marriage Act to be unconstitutional, due to the fact that it is a violation of equal protection principles. In the majority statement, authored by Justice Kennedy, it was additionally stated that “DOMA’s principle effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal effect is to impose inequality, not for other reasons like governmental efficiency.” This court ruling firmly places the decision of whether gay marriage is to be recognized into the hands of the states, which still define marriage within their own jurisdictions.
Under the written letter of the Constitution, this case should be open and shut. There was a federal law that discriminates against certain citizens, and now it applies to all citizens equally. However, the country is extraordinarily polarized on the issue, and many statements of disapproval regarding the ruling have been made. Fox News commentator Todd Starnes summed up the general opinion of many dissenters when he tweeted “Supreme Court Overrules God." Those who don’t agree with the court are not doing so on any sort of constitutional basis. They’re doing so due to their own personal beliefs, and the idea that those beliefs should be reflected in the law. Even as it decided that the Defense of Marriage Act was partially unconstitutional, United States v. Windsor proves that nobody cares about enforcing the Constitution anymore.
The public, when expressing its opinion, made few if any comments about whether or not the law was a violation of the Fourteenth Amendment. Opinion was generally divided between the gay community and its allies, who wanted equal recognition, and the pro-DOMA camp, which placed value on religious interpretations of marriage.
Even while reading Justice Kennedy’s opinion, it comes across less as a legal argument, with a clear listing of what amendments or articles had been violated, and more as a statement of five justices believing that equal recognition of marriage is “right.” The Supreme Court is not meant to be an arbiter of morality, it is meant to determine whether or not the law being challenged by the case they are hearing is constitutional or not. Section 3 of DOMA, which defined marriage as between a man and a woman, was fairly clearly in violation of the Fourteenth Amendment, and should have been universally seen as such by the justices. But reading Kennedy’s remarks, the lack of constitutionality seemed to have taken a back seat to the idea that Section 3 was “wrong.”
The reality is that constitutionality has simply become a tool of policy. When one camp or the other decides that they don’t like a law or act, they threaten to bring it before the Supreme Court so it can be struck down as “unconstitutional,” regardless of whether they have a claim to stand on. The court has done little to deter this line of thinking, voting more based on party line than any sort of interpretation of the original text. Even the office of the presidency is somewhat to blame for this transition from constitutionality to policy. Before Andrew Jackson notably started to use the veto as a policy tool during his time in office, the presidential power to veto was interpreted to be a check against unconstitutional acts by congress. Had the original intent of the veto been more closely adhered to, Bill Clinton never would have agreed to sign the bill in 1996.
Ultimately, United States v. Windsor provides more than a final verdict on the Defense of Marriage Act. It provides proof that the role of the Constitution in American law has changed. Far from the end-all and be-all of what is and is not allowed, it has been cheapened to a mere tool to attract the favor of the masses to one side of an issue or another.