Monday, December 10, 2012

Double Rainbow: DOMA and the Supreme Court

Still one of my favorite viral videos...

But to get slightly more on topic, last week, to the impatience of many, the Supreme Court finally accepted two cases which took up the issue of gay marriage.

The first was the California Prop. 8 case.  This referendum outlawed marriage between two people of the same sex, which was approved by the voters of California.  The law was later overturned on equal protection grounds.

Changing AttitudesThe second case, deals with DOMA, or the Defense Against Marriage Act.  This was an act created by Congress, and signed into law by Bill Clinton in 1996.  It defines marriage as between one man and one woman, which prevents married gay couples from receiving any federal benefits.  In this particular case before the Supreme Court, Windsor v. United States, a woman was forced to pay over $350,000 in estate taxes that she would not have had to pay if her marriage was recognized by the IRS.  The Supreme Court will decide if it agrees with the 2nd Circuit that DOMA violates the fifth amendment's equal protection clause.

So how do I think the cases will turn out?  It's tricky, and some people are very nervous about this.  I think DOMA, at least, will be struck down, probably in a 6-3 or even 7-2 decision.  The four liberals, plus Kennedy will form the core of the decision. Chief Justice Roberts, always looking ahead to his legacy, and not wanting to be on the wrong side of history, will also join them.  Scalia, if actually wants to be consistent, will look at his Lawrence dissent and join them. This is highly unlikely though.  Scalia has made his feelings about homosexuality very clear.

As for the other case, Prop 8, will also be struck down I believe, consistent with the Romer decision which Kennedy authored a few years back, which stated that singling out homosexuals for particular discrimination did not pass the rational basis test.  This job will be made easier by opponents of same sex marriage being unable to articulate any secular harms which may come into play if gay marriage comes into play. 

The Supreme Court has given itself an out, if it wants, to say that that the opposition to gay rights has no standing, and refuse to rule on the merits of the cases, letting the lower courts rulings stand.  But I doubt they took these cases just to do that.  What would be the fun in dong it that way?

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