SCOTUS

The past couple of weeks have been huge ones in terms of Supreme Court decisions related to life here in the Trenches.  First, there was the Baby Veronica decision, then the Defense of Marriage Act and Proposition 8.  Despite all the hoopla surrounding these decisions, they're not really about family law.  No, really, I'm serious.   All of those decisions were based on constitutional mandates, and not substantive areas of family law.   The Proposition 8 decision didn't strike down Proposition 8:  the Supreme Court decided that the Petitioners did not have standing to bring their claim.  You see, in order for a court to decide a case, the person filing the case actually has to have been injured or aggrieved; and in this case, the Petitioners were simply members of the voting public and not actually directly affected in any way more that the general public by Proposition 8.   The Defense of Marriage Act decision wasn't about recognizing gay marriage:  the Supreme Court affirmed that the law of marriage and family was left to the states by the Constitution, and that once the states have determined that certain classes of individuals may marry, the federal government may not act to deprive them of rights granted to any other married couple.  There was also a subsidiary discussion of judicial power to determine the issue, akin to that presented in the Proposition 8 case. In other words, the DOMA decision is about separation of powers and state's rights, and only incidentally about gay marriage.  The DOMA decision is kind of interesting when you read it with the Baby Veronica case, which dealt with the federal Indian Child Welfare Act and adoption.  That's right, a federal statute governing family rights.  What's really interesting is that in the Baby Veronica case, Dad would not have been successful challenging the baby's adoption under state law - except for the fact that he was 1/125 Cherokee Indian.  You see, with ICWA, the federal government decided that the states have to give American Indians more protection in adoption matters than they give anyone else.  The Supreme Court did not find that ICWA was unconstitutional as usurping state rights in matters of marriage and family.  Rather, they found that under ICWA, Dad just didn't qualify to contest the adoption.  Confusing, isn't it?  It's even more confusing if you read the opinions.  I wish you would.  They are fascinating discussions of legal principles, and a demonstration of how brilliant legal minds can differ on questions of law and argue both sides persuasively.  Honestly, the concurring opinions and dissents are every bit as intriguing as the main opinions.  (Remember, these are all 5-4 decisions).   If nothing else, the opinions give you a taste of the art of lawyering, and hopefully a newfound respect for what we lawyers do - here in the Trenches.