The U.S. Supreme CourtToday, 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.
Gene,
Don’t you know that the Bible should be our constitution?! 🙂
OS,
That Hoffer was a wise observer of human nature.
” I am glad however at the possibility of working within the constitutional framework to restrict what I believe to be immoral.”
Thus revealing that you really don’t understand the Constitution. Your moral judgment is based in a religious argument, not a legal (or even ethical) argument let alone a Constitutional argument. People have already floated the Constitutional amendment to define marriage as you want and it failed miserably. Why? Because anyone with an understanding of the Constitution knows it would not pass scrutiny by the courts. The Federal Marriage Amendment has failed every time it has been brought before Congress since 2006.
Then there was this salient observation by the working person’s philosopher, Eric Hoffer:
Hoffer could have been talking about Karen and timmy.
Gene H.
Have good night and until we talk again may you see the light.
Gene H
I know quite a bit of them actually.
It’s called rope, Timmeh.
I’ve given you enough to totally hang yourself.
Enjoy.
Gene H.
I hate to admit it but discussing with you this issue did change my mind on the constitutionality of the issue. I am glad however at the possibility of working within the constitutional framework to restrict what I believe to be immoral.
Gene, timmy reminds me of an old Scottish proverb:
Cha tèid nì sam bith san dòrn dùinte.
(English translation: Nothing can get into a closed fist.)
“Not in states like Kansas, Oklahoma, Alabama, Texas, etc.”
You don’t actually know any politicians, do you?
Yeah, you’re on something alright.
And thanks for admitting you simply want to discriminate because there is no specific harm to justify oppressing the rights of others.
Bigot.
Gene H
Not in states like Kansas, Oklahoma, Alabama, Texas, etc.
” I think I will be proposing this to my good Senators and representatives here in my state.”
And they’ll politely say “I’ll take that under advisement, Mr. Timmeh.” The instant you leave their office, they’ll laugh out loud and tell their security to keep you away from them. That’s the political reality of the situation.
Gene H
There is no harm. But, I am on to something that has teeth. Gay marriage age restrictions and pre wedding classes, etc. I owe it all to our discussion.
Gene H
Yes it would pass the 14th. We have age restrictions on guns and even marriage.
Maybe you should stick to the issue.
Besides, if you think this is a anti-gun blog just because liberals post here? You obviously don’t read and understand this blog. There are quite a few pro-2nd liberals here.
You aren’t fighting fire with fire. Ironically enough, you’re fighting fire with fairy dust. Your religious arguments are not legal arguments. You have no valid legal arguments.
That’s why you can’t answer the question.
You cannot provide a single example of a specific harm.
Timmy hacks, “I guess you don’t hate killing. How about stealing? How about taking advantage of the defenseless. Oh I know How about identity theft?”
You continue to extend to me a permission slip for you to hate, and project it onto me. I once again decline your pedantic invitation to sign it.
I also find your comments increasingly blood-thirsty, hardly a christian virtue. Who, exactly, Timmy, would you kill first?
Gene H
That is it. Restrict Gay marriage through age restrictions. Make them take classes before saying I Do. I think I will be proposing this to my good Senators and representatives here in my state. The domino effect will only spread nationwide in Right leaning states.
It wouldn’t stand the challenge in court based on the 14th, Timmeh.
You’re living in a political fantasy world.
Gene H.
Liberals have been trying to restrict the right to own a gun. North Dakota got smart and restricted legal abortions. They didn’t outlaw them. We are starting to fight fire with fire. What a fight to come on other issues including Gay marriage. Maybe states should have an age restriction like 55.