Being a "News Junkie" I have been following the recent cases before SCOTUS (Supreme Court of the United States) as I do any major news story. And I find that the more I think about the issues, the less I like any definitive solution. It seems that "the right thing" and "having a right" are not in this case the same thing, and that the resolution which seems most correct to me on Constitutional grounds would not please anyone. Warning: I am not a lawyer, constitutional or otherwise, just someone who has had a lot of legalese explained to me over the last three decades or so. I also confess to having friends and acquaintances of various sexual preference, political leaning, and religious belief.
It seems to me that the answer to both of the cases, the legality of a proposition banning same sex marriage (SSM), and the constitutionality of of DOMA (the defense of marriage act) lies in the "reserved to the states" wording. It has long been the case that while states may allow certain activities, and regulate them or not, each state may choose to do differently, but has to recognize the choice of other states as legal and binding.
What? Example: a corporation is formed in one state, and it operates under the laws and regulations of that state, even in other states where the creation of corporations is regulated in other ways. That doesn't apply to criminal law, or regulation of business practices, disclosure, and such, but in general the rules of the state of incorporation apply.
Example: a contract is drawn and signed in one state, it is normally binding in all states.
Example: some states have a sales tax, and transactions in those states by out of state residents are charged that tax. At the same time, in some cases the buyer's state of residence may attempt to collect their sales tax on a transaction which took place elsewhere.
Example: a couple become lovers in one state, where both parties are over age of consent. No law is broken even if they are not age of consent in their home state. However, transporting a person over a state line for the purpose of sex is illegal, the aptly named "Mann Act."
Example: a couple marries in one state, and is considered married in all other states, even if the marriage would not be legal in some states because of age or relationship. The age to marry in states varies, the legality of first cousins marrying, and in the past marriage between races was prohibited.
It is this last case which seems to apply, and the court, not given to decisions broader than needed, may well decide that in California Proposition eight is perfectly legal and binding, but that all legal marriages performed anywhere must be recognized. And that the section of DOMA which prevents recognition of any marriage other than heterosexual is not valid as written, and the the Federal government must also respect the right of each state to define its own requirements for marriage.
This would please the justices, for they could avoid defining a "right to marry" which overruled the right of states to regulate, and also protects the rights of those who are legally married, in all states and jurisdictions, including Federal tax and inheritance, presumptive health care proxy status, visitation rights, and custodial rights to biological or adoptive offspring.
Those people who believe that all states should be required to allow SSM would be disappointed that what they see as "their rights" were not forced on groups who have different values, for reasons good, bad, or simply inscrutable.
The bigots, fundamentalists, and the clergy and politicians who pander to them for support rather than out of conviction would all be horrified that the court did not allow them not only to eschew those marriages themselves, but to prevent them for others.
That sounds like like a typical court decision, neither creating nor preventing new rights, and affirming the right of people in each state to work it out for themselves. It gives neither party all of what they wanted, but at the same time is not a crushing defeat. That sounds about as good as it gets, given that bother sides of the issue include those with strong beliefs and those who see the issue as a means to some personal gain, be it in money, power, or public standing. All attended by the media, who may have personal views on the topic, but mainly don't want to let a good story die too soon.
