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Day 2 – DOMA is Done

March 27, 2013

After today’s Supreme Court arguments in the Defense of Marriage Act case, United States v. Windsor, it looks like marriage equality has five votes. It looks like Justice Kennedy is ready to join the four liberal justices in rejecting the federal government’s attempt to override individual states’ judgments about who can and cannot be legally married.

Still, there is room for nuance on both sides. I think the four liberal justices are likely to rule that denial of federal marriage benefits to legally married same-sex couples is a denial of same-sex couples’ constitutional right to equal protection of the law. Justice Kennedy seemed more inclined to reject DOMA on the grounds that the federal government may not intrude on a state’s determination of who can and cannot be married.

Of course, questions asked during oral arguments do not always indicate a justice’s opinions – sometimes, a justice asks a question not to express an opinion, but – shock! – to get the answer to the question. And a justice can change her mind after oral argument is over. Just for the fun of it, though, let’s pretend that the justices’ questions yesterday and today accurately predict their votes – what is the net outcome?

If five justices conclude that the federal government is constitutionally obligated to respect a state’s decision about who can be legally married, then DOMA is done – or at least the section of DOMA that is up for discussion here. That would mean that same-sex couples who are legally married in the states that permit same-sex marriage would be entitled to all of the rights that the federal government affords to heterosexual married couples. Advocates have compiled a list of more than a thousand benefits that the federal government gives to legally married opposite-sex couples but denies to legally married same-sex couples.

But it looks like the reasoning of the five-justice majority might not be unanimous. It looks like four justices will vote to strike down DOMA on equal protection grounds, and one justice will vote to strike DOMA down on federalism grounds. If so, there will not be a binding Supreme Court precedent on the equal protection rights of same-sex couples.

That would mean that the standard of review – strict scrutiny versus rational basis – for claims of governmental discrimination based on sexual orientation would remain undecided. That would mean that the other important provision of DOMA, the provision that no state is required to recognize same-sex marriages that are legal in another state, would survive to fight another day.

On the conservative side, there is also room for nuance. The conservative justices might conclude that the court does not have jurisdiction over the case – that issue arising because the case was brought to the Supreme Court by the United States, which actually agrees with the lower court rulings. Ordinarily, only the losing party gets to appeal a judicial decision.

But even if the conservatives vote to dismiss the case for lack of jurisdiction, I think it’s likely that at least Justice Scalia will issue an opinion on the merits of the case. Justice Scalia will not want to pass up the opportunity to record formally his disagreement with five justices sustaining same-sex marriage rights.

If Chief Justice Roberts reaches the merits, I think he is likely to conclude that DOMA legitimately expresses the federal government’s interest in uniformity – same-sex couples from marriage equality states being treated the same as same-sex couples from other states.

If Justice Scalia reaches the merits, I think he is likely to say that DOMA legitimately expresses the federal government moral disapproval of homosexuality. I don’t think Justice Scalia will forego what may be his last chance to record his judicial homophobia in the Supreme Court Reports.

Justice Alito’s questions today suggested that he might join Justice Roberts and not Justice Scalia, but I doubt it. And of course Justice Thomas asked no questions at today’s arguments. If you had to judge from the transcript alone, you would conclude that the Supreme Court is composed of eight justices.

*          *          *

Commentary about yesterday’s argument is filled with accusations that the court is looking to “duck” the issue of marriage equality. Maureen Dowd went so far as to accuse the justices of cowardice. The view among liberals seems to be that the court’s decisions in the Proposition 8 case will be a disappointment. To borrow a judicial phrase, I dissent.

I think we are about to see a great leap forward for lesbian and gay rights in general, and for same-sex marriage in particular.

I think it’s likely that the court will conclude that it lacks jurisdiction to decide the Proposition 8 case, because the Proposition 8 sponsors do not have “standing” to defend the constitutionality of Prop 8 in federal court. That would mean that the court of appeals’ decision would be vacated, and the trial court’s decision would stand. This is not a bad result, but an outstandingly good result, since the trial court decision was an injunction against enforcement of Proposition 8. California, with 12 percent of the American population, would be added to the 16 percent already living in marriage equality jurisdictions. In my book, that’s a huge win.

On top of that, based on today’s case, legally married same-sex couples would be entitled to all of the rights and obligations that the federal government affords to opposite-sex couples. The dreaded re-definition of marriage would be a done deal.

The sky would not fall, and blue states would continue to move to marriage equality. Public opinion will continue to move as well. Before very long, someone else will sue for the right to marry a member of the same sex, in a state that doesn’t allow same-sex marriage. That case will reach the Supreme Court in a few years, and the court will be ready to sustain same-sex marriage rights across the board.

I was young once, and militant, and I understand the desire for complete justice, right now. But I am old enough now to see that gradual change is not only more typical but probably also more durable, and therefore preferable in the long run. I would rather have the public mature into acceptance of same-sex marriage with a few judicial nudges, than have the public revolt against a sweeping judicial edict.

The arguments in the Supreme Court yesterday and today portend some very well placed nudges. I could hardly be happier.

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