Gay marriage round two at the Supremes today. The demonstrations outside the Court were a lot smaller and quieter. So on to the actual case. This time it is the Defense of Marriage Act (DOMA), particularly the part that says the federal gov't defines marriage as one man and one woman for all of its business. Again, I'm relying on the analysis of Ari Ezra Waldman of Towleroad. No time tonight to search for other opinions.
The first hour was spent discussing whether the Court should even bother with the case. If the Obama admin. supported getting rid of DOMA and won that case in Circuit Court they aren't the injured party and shouldn't be able to ask the Court to review the case. Along the way a justice noted that if Edie Windsor (the lesbian widow at the heart of the case) wins, the gov't owes her $350,000 in a tax refund. So, yeah, the gov't is the injured party. But enough of that.
In the rest of federal law the states say, "These people are married," and the feds respond with, "Fine. These are the benefits they get." Those benefits are a small way of encouraging stability in marriage.
But DOMA says, "No matter what the state says, for federal purposes gay people are not married." Which leads to a big discussion of whether DOMA is unconstitutional on federalism grounds -- whether the feds are usurping the role that should be left to the states. Some justices, particularly Kennedy, focused on this idea.
But this one could bit us in the backside if it is used. If this case says who can marry is solely a state issue, then California is free to decide gays should be excluded from marriage. Much better to decide DOMA is discriminatory, but there may not be five votes for that.
Paul Clement, the lawyer for the House wanting to keep DOMA, tried to say that DOMA is necessary for equality -- it means the feds treat all gay couples equally. If DOMA is overturned, gay couples in marriage equality states are treated differently than gay couples in other states. Nice try, dude. What that means is gay couples would always be treated differently from straight couples. The justices then used Clement for target practice. The poor guy was reduced to his one argument: But gay marriage is different.
Clement's rebuttal tried the same tactic as the anti-gay side. Gay marriage is going to win anyway, so the courts should stay out of this issue. But leaving our rights up to the good graces (or whims) of our opponents violates the constitution and courts are abdicating their responsibility if they ignore inequality. Not responding to the tyranny of the majority eviscerates our system of justice and democracy.
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It was a rather entertaining and lively discussion. I listened to much of it on CSPAN last night. My guess is that the Court will overturn DOMA and, rather than address the California Prop 8 directly, rule that the anti-gay group does not have standing to defend the act in the courts. Just a guess.
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