Supreme Court Takes Up The Defense Of Marriage Act

The U.S. Supreme Court
gay-pride-flagThe U.S. Supreme Court

Today, the Supreme Court will take up the Defense Of Marriage Act (DOMA), the law signed by Bill Clinton that denied benefits and equal treatment to same-sex couples. This follows yesterday’s interesting, and at times heated, debate over Proposition 8 in the Hollingsworth case. I will be on MSNBC today discussing the case with NPR’s Here and Now at 12 and then Martin Bashir at 4 p.m.

While some of us have been cautioning people for weeks that this Court was more likely to look for a way to avoid a major decision and could avoid a decision entirely through standing, many were disappointed with the tenor of the questions yesterday. Members like Chief Justice John Roberts seemed openly peeved by people pushing him toward a decision on equality for homosexuals. As expected, Associate Justice Antonin Scalia was the most provocative with questions like “We decide what the law is. I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the Fourteenth Amendment was adopted?”

However, even Justice Anthony Kennedy, viewed as the key swing voter, expressed uncertainly about whether the trend toward equality would result in a magnificent end or go over “the cliff.” It was clear that the justices viewed this as a “new” question and had reservations about deciding it for the nation. Indeed, they looked like so many elderly drivers in Florida driving slowly on the highway with their turn signal on, looking desperately for an off-ramp.

That off-ramp could be standing since this case has significant problems on whether the proponents of the law have sufficient injury to demand relief before the Court. If dismissed on standing, that would also mean that the Ninth Circuit also lacked standing. That would leave the district court decision and same sex marriage would be restored in California. However, there would be no sweeping new protection secured in the case.

Another off-ramp was hinted at by Kennedy who openly wondering if the case was wrongly accepted. The Court can simply dismiss a case as premature and mistakingly granted. Many leaders on the Court like Earl Warren wanted to speak with a strong or a single voice on major issues. Absent such a consensus, some might prefer to toss the case rather than produce a fractured decision. It is clear that some justices remain undecided on the fundamental question, though most of us would not view this as a “new” question. The right to marry is not a new question. Nor is equality. Indeed, the gay rights movement is hardly new. Yet, this is an incrementalist Court that historically tries to avoid getting in front of the nation on divisive questions.

That brings us to DOMA and today’s argument. After the indecision expressed yesterday, it seems hard to believe that the justices would express certainty on the fundamental right today in the DOMA context. Many had hoped that the Court would simply find the law unconstitutional as a violation of equal protection and extend heightened scrutiny to sexual orientation. When Clinton signed this law, many condemned it as open discrimination. Indeed, it is frustrating for civil libertarians to see Clinton and Senators like Claire McCaskill come out expressing their rather belated conclusion that same-sex couples deserve equal treatment in marriage. When such decision requires more courage, they were no where to be found and, in Clinton’s case, openly worked against gay rights.

With even Kennedy expressing uncertainly yesterday, a ruling recognizing equality seems a bit more difficult today. Yet, a ruling upholding DOMA would be equally sweeping. This case also has a number of off-ramps. Standing in this case for the members of Congress is highly questionable. I represented Democratic and Republican members challenging the Libyan war and we were dismissed on standing grounds. That could be the result here, though it would be a bitter end if both landmark cases end in procedural dismissals.

Another intermediate resolution would be for the Court to strike down DOMA not only equality grounds but federalism grounds — avoiding the creation of a new fundamental protection for gays and lesbians. The Court could hold that Congress was interfering with a state question (the definition of marriage) by denying benefits to all same-sex couples (including those from states recognizing same-sex marriage). In so holding, the Court would not be holding that there is an equal protection for homosexuals but rather that this is a matter left to the states. That would still be a victory for gay rights but not the one most deserved from this case.

768 thoughts on “Supreme Court Takes Up The Defense Of Marriage Act”

  1. lottakatz:

    I, We prefer pinnipeds but We grant you that cephalopods are really neat.

    Stay faithful. This may be a good time for you to buy long in that one stock you are thinking about buying. Just a suggestion, We try to stay away from financial advice given that pesky free will.

  2. Timmy says: Jefferson said our creator is where we are given our unalienable rights

    Among those life, liberty and pursuit of happiness, which for a homosexual is a homosexual marriage.

    Also, that is YOUR creator, not necessarily Jefferson’s idea of a creator, which for a deist is really just a place-holder for some otherwise unexplained beginning of the universe.

    For Jefferson in particular, he rejected organized religion in general and Christianity in specific, Jefferson did not believe in the inerrancy of scripture, and did not believe any of the supernatural events described in the Bible actually occurred. That would include Christ rising from the dead.

  3. Well, I guess someday marrying your dog or cat will be a civil right even though it is not recognized now

    What was that about “Dogs and Cats” ?

  4. Timmy: WHY do you think God would demand that people put homosexuals to death?

    Why not avoid creating them in the first place? Why not make them stillborn, or why not make a homosexual act naturally fatal, or naturally so repulsive that no person could engage in it? Is such a design beyond the ability of God? Why would God give homosexuals the desire for the same sex, and no desire (in fact often revulsion) for sex with the opposite sex, and then demand they resist that temptation and overcome their revulsion?

    This whole scheme makes no logical sense, even if you factor in “free will” and pretend homosexuals have a choice in their attraction. What could possibly be the point of giving your child a choice between two options (and there are only two genders) and then telling them, up front, if they ever choose “A” instead of “B” you will have them killed?

    There is no point, their “choice” is to obey or be killed. It is the equivalent of a mugger putting a gun to your head and “your money or your life,” or a slaver putting a gun to your head and demanding you work or die. Those aren’t choices, they are coercion by death threats.

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