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. Timmy, my child,
    You have no inkling of what I think, on any subject.
    I, however, know exactly what you’re thinking…
    There’s…nothing there.

    If you’re obsessed with marrying, and making love to, your dog, it’s quite OK with me. I think beings of similar complexity should be together. Go for it!

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

    Well I guess you’re not smart enough to understand the numerous times it was explained to you that will never happen under our laws because animals lack the capacity to grant valid consent and therefore are unable to contract.

    “BTW, Jefferson said our creator is where we are given our unalienable rights”

    BTW, Jefferson was a Deist who re-wrote the Bible to take out as much of the mystical mumbo jumbo and inconsistencies as possible to separate the wheat of true wisdom and ethics from the gibberish.

    ” and we both know that the creator doesn’t approve of Gay marriage.”

    You think you know what “the creator” thinks, Timmeh. Which is delusional. I think that if gods exist, there is no way a human – any human – could understand them in the slightest as they are outside the frame of reference for this universe. If you spoke physics instead of nonsense, you’d know this makes understanding literally impossible. In short, I think you’re full of crap whether God exists or not. However, if God is Love then He/She/It either approves of love in homosexual as well as heterosexual love or that God is not giving unconditional love but rather (as Tony mentioned earlier) using love as a tool of coercion which is inherently not the action of a loving God but rather the love of a sociopath.

    Carry on.

  3. Gene H.

    Well, I guess someday marrying your dog or cat will be a civil right even though it is not recognized now. BTW, Jefferson said our creator is where we are given our unalienable rights and we both know that the creator doesn’t approve of Gay marriage.

  4. I like how you just make things up when they don’t go your way, Timmeh.

    Your lil’ maneuver there is called a false accusation, specifically of inconsistent comparison. Except my definition of valid state interests in marriage have indeed been consistent as has the definition used namely that at its core marriage is a contractual obligation. That a civil right is not fully legally recognized does not make it non-existent, simply unrecognized. At one time, women couldn’t vote. Didn’t mean they didn’t have the right, only that it wasn’t recognized as protected. Like it is now and like homosexual marriage will eventually be. Although I like pickles, I was never in one, but if that thought makes you feel better about losing at every corner of this argument?

    Knock yourself out.


    Sometimes a self-inflicted head wound can have startling mental benefits.

    At least in your case, it’s not likely to hurt your cognition so as anyone would notice.

  5. Gene H.

    I like how you moved away from the definition of marriage. Of course it was the right thing to do since you got yourself into a pickle. BTW, If gay marriage is a civil right then it can’t be denied in one state and accepted in another for the 14th amendment would apply which ruins your definition when using jurisdiction. Personally I do not believe marriage of the same sex is a civil right otherwise one could marry almost anything.

  6. Tony,

    “Our marriage license was not a contract, it is just permission to ‘marry.'”

    “You care about technical accuracy, which in this case confuses the issues.” – Tony C.

    Here we will just have to disagree.

    The devil is in the details and the basic definition of contract is not beyond the grasp of a layman: mutual agreement with valid consent in exchange for mutual benefit/an exchange of value.

    You may think that’s the ground from a mile up, but actually it is only about three quarters of a mile up. The technicalities of the law of contracts from the ground is considerably more complex. “Murray on Contracts”, one of the standard texts on contracts if not the definitive text is about six inches thick (and not a picture in it). If I’d gone so far as to address issues like specific performance or promisory estoppel? Then I’d agree that the detail is obscuring, but I don’t think using the accurate definition of contract is a greater disservice than the outright falsehood that is “marriage is not a contract”. It is. Wrong is not a simplification. It is simply wrong.

    “It introduces no significant inconsistency to describe marriage as different than a contract when I suspect most readers will have an inaccurate view of what IS a contract anyway.”

    Then they should be told what a contract is in basic terms. Consider that the dictionary definition of marriage is what most people will know – “the formal union of a man and a woman, typically as recognized by law”. How is it recognized by law? As a contract. Aside from laws protecting the well-being of children all of the governments valid interests in marriage are contractual in nature.

    It’s not only accurate, it goes to the heart of the matter of homosexual marriage and why the prohibition is both a deprivation of equal protection and what the proper interests of government in the relationship are.

  7. Gene: Then you don’t care about accuracy then. […] Your inaccuracy was creating inconsistency.

    On the contrary; I am just willing to sacrifice a little accuracy in order to prevent confusion and therefore succeed in communicating an idea, instead of failing to communicate an idea because I loaded my writing with caveats and confusing details. You care about technical accuracy, which in this case confuses the issues. The only “inconsistency” perceived will be by experts such as yourself.

    By analogy, if I choose to teach the physics of astronomy to freshmen, I am going to be employing the Rutherford “planetary” model of the atom to explain element synthesis. That is not the most accurate possible model, it presents the subatomic particles as fixed point objects they are not; they are wavicles under quantum chromo-dynamics, electrons do not “orbit” the nucleus, they are standing waves that occupy an entire ring simultaneously.

    But these technicalities only confuse the issues when discussing how a star creates heavier elements by fusing lighter ones. Confusion over technicalities will leave students with fuzzy ideas about how the parts of the model fit together, so they learn less, not more. We do not teach graduate physics to beginners.

    And we don’t worry about experts nitpicking of the idealized model, they know where it is wrong, but also know the view from a mile up is essentially correct.

    It introduces no significant inconsistency to describe marriage as different than a contract when I suspect most readers will have an inaccurate view of what IS a contract anyway. Just as it introduces no significant error into the discussion of elemental synthesis by fusion to use the Rutherford planetary model of atoms when I suspect that is what most students are thinking is accurate anyway, and anyone that knows better will also know it is close enough.

  8. pete,

    Man, you may have just come up with the plot for “The Sopranos II: The Fabulous Next Generation”. There’s a future for you in Hollywood yet. And I don’t mean Hollywood, Florida.

  9. Timmeh,

    ” A h civil right can’t be in some jurisdictions and not others therefore you lose!!”

    Not at all. Apparently you don’t know the meaning of the word “jurisdiction” . . .

    “The authority of a court to hear and decide a case. To make a legally valid decision in a case, a court must have both ‘subject matter jurisdiction’ (power to hear the type of case in question, which is granted by the state legislatures and Congress) and ‘personal jurisdiction’ (power to make a decision affecting the parties involved in the lawsuit, which a court gets as a result of the parties’ actions). For example, a state court’s subject matter jurisdiction includes the civil and criminal laws passed by its own state, but doesn’t include patent disputes or immigration violations, which Congress allows to be heard only in federal courts. And no court can hear or decide a case unless the parties agree to be there or live in the state (or federal district) where the court sits, or have enough contacts with the state or district that it’s fair to make them answer to that court. (Doing business in a state, owning property there, or driving on its highways will usually be enough to allow the court to hear your case.) The term ‘jurisdiction’ is also commonly used to define the amount of money a court has the power to award. For example, small claims courts have jurisdiction only to hear cases up to a relatively low monetary amount — depending on the state, typically in the range of $2,000 to $10,000. If a court doesn’t have personal jurisdiction over all the parties and the subject matter involved, it ‘lacks jurisdiction,’ which means it doesn’t have the power to render a decision.”

    The issue before the bar now: the constitutionality of DOMA. A finding on a 14th Amendment basis will result in DOMA being unconstitutional and effectively recognize the civil rights of all homosexual citizens as protected, a finding under the Federalism argument would not be holding that there is equal protection for homosexuals but rather that this is a matter left to the states . . . and will most certainly guarantee a future challenge based on the 14th again analogous to the argument made in Loving v. Virginia. At one time, anti-miscegenation laws were left to the states too. Either way, a victory for the LGBTQ community although the 14th Amendment argument is so prime facie meritorious, it will eventually succeed even if it takes another SCOTUS case to do if the 14th Amendment means anything at all. The criticism day one of DOMA was that it was prime facie unconstitutional on Equal Protection grounds.

    It is a valid criticism.

  10. Gene

    “Two males cannot enter into a contract that protects them from testifying against each other, or providing tax-free inheritance to each other.”

    i think there may be a new proponent to same sex marriage, the mafia.

    hey salvadore, don giovanni reguests your hand in marriage on thursday of next week, the day before the grand jury meets. make sure you wear white.

  11. Gene H.

    You lose!!!
    (in some jurisdictions) a union between partners of the same sex A h civil right can’t be in some jurisdictions and not others therefore you lose!! The jurisdiction of one state v. another would not be a civil right unless it is for all of America. So, your definition doesn’t work and your argument just went out of the window.

  12. rafflaw,

    What has Kristol gotten right? Nothing comes to mind. Does anyone still listen to that man? I’d say he’s the pathetic one.

  13. Elaine,
    Bill Kristol is saying 26 year olds don’t know anything? What has he ever gotten right?

  14. GOP Pundit: Republicans Shouldn’t Listen To Know-Nothing Young People On Same-Sex Marriage
    By Annie-Rose Strasser
    Apr 1, 2013

    Top Republican pundit Bill Kristol believes that members of his party are only considering support of marriage equality to keep up with TV shows, and to appeal to “some 26-year-old who doesn’t know anything honestly.”

    In an interview on The Weekly Standard’s podcast, Kristol, the publication’s editor, argued that Republicans who reconsider their position on marriage — like Sen. Rob Portman (R-OH), who flipped his view after his son came out — are “pathetic.”

  15. Timmeh,

    Note you are using a colloquial definition, not a legal definition. It in no way advances your argument about the law, but if you want to play that game, I’ll see your and raise you an Oxford English Dictionary (considered the definitive dictionary by language scholars):

    marriage /ˈmarɪdʒ/, n.,

    1: the formal union of a man and a woman, typically as recognized by law, by which they become husband and wife:she has three children from a previous marriage

    [mass noun] the state of being married:women want equality in marriage

    (in some jurisdictions) a union between partners of the same sex.

    Emphasis added for the hard of understanding.

    Looks like you lose again.

  16. Lotta,

    No problem, just don’t blame me for the loss of productivity. Also, their April Fools day trick is awesome.

  17. Gene H.

    the social institution under which a man and woman establish their decision to live as husband and wife by legal commitments, religious ceremonies, etc. Antonyms: separation.
    a similar institution involving partners of the same gender: gay marriage

    Notive b. states a similar institution not exactly like the one from the first (a) definition.

  18. Pointing out inaccuracy is not picking a fight, Tony.

    It’s pointing out inaccuracy.

    And I saw what you said earlier. That’s why I brought it up the way I did. Your inaccuracy was creating inconsistency.

    If I were trying to start a fight, I’m pretty sure we’d be having one. As our ends – recognition of equality – is the same, I don’t think this qualifies. A disagreement on presentation and framing? Sure. A fight? Not even close.

    I save those for when you do really silly things like try to redefine the basis of an entire profession and the theory of government, not when we essentially agree in general if not in specific.

  19. Gene: That is part of why the LGBTQ community is fighting for their rights: they don’t want a backdoor for future discrimination left open, they want equal rights.

    If you had read what I wrote, instead of trying to pick a fight, that is what I have been saying from the beginning. And if you had read what I wrote, instead of trying to pick a fight, you would see I said the same thing about civil unions, unless they are defined as “all the rights of marriage” and that definition cannot be changed, they will be diluted, and that is why gays are demanding their relationship be called “marriage” (as it should be).

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